UNIVERSITY  OF  ILLINOIS 
LIBRARY 

Class  Book  Volume 


MrlO-20M 


Return  this  book  on  or  before  the 
Latest  Date  stamped  below. 

Theft,   mutilation,   and   underlining   of  books 

.te-  "^  '"  •""'I'"""*  32  and  may 
lt  in  dismissal  from  th»  University 

JJniversity  of  Illinois  Library 


L161— O-1096 


LAW  OF  EMINENT  DOMAIN, 


RAILROADS  AND  WAREHOUSES, 


COMPRISING   TIIK 


CONSTITUTIONAL  AND  STATUTORY  PROVISIONS, 


STATE  OF  ILLINOIS, 


TOGETHER  WITH  THE  DECISIONS  RELATING  THERETO,  OF  THE  SUPREME 

COURT  AND  APPELLATE  COURT  OF  THE  STATE  OF  ILLINOIS, 

AND  THE  COURTS  OF  LAST  RESORT  IN  OTHER 

STATES,  AND  OF  THE  SUPREME  COURT 

OF  THE  UNITED  STATES. 


COMPILED  AND  ANNOTATED  BY  W.  H.  MANIER. 


P.     irti.     UUSK,     PUBLISHER, 
,  ILLINOIS. 


COPYRIGHT,  1888,  BY  D.  W.  LUBK. 


ILLINOIS  STATE  REGISTER  Co. 
PRINTERS  AND  BINDERS, 
,  ILL. 


in 

o 


PUBLISHER'S  ANNOUNCEMENT. 


In  presenting  this  volume  to  the  legal  profession,  the  publisher 
confidently  believes  that  it  will  be  accepted  as  a  valuable  contribution 
to  the  library  of  Law,  as  it  forms  a  convenient  and  reliable  compilation 
of  the  statutes  of  Illinois  bearing  on  the  questions  of  Eminent  Domain, 
Railroads  and  Warehouses.  The  well  known  ability  of  Mr.  MANIER, 
the  compiler,  as  a  lawyer,  warrants  the  assertion  that  the  work  will  be 
found  both  reliable  and  authentic.  The  statutes  have  been  taken 
from  publications  authorized  by  the  State,  and  the  decisions  of  the 
respective  courts  from  official  reports,  and  not  from  any  of  the  many 
digests.  The  revised  proof  sheets  have  been  read  by  Mr.  MANIER,  and 
carefully  compared  with  his  manuscript,  which  insures  accuracy  in 
the  printing.  Scrupulous  care  has  been  observed  with  regard  to  the 
"9  index.  In  it  is  cited  every  section  of  the  statutes  and  subject  con- 
^,  tained  therein,  and  every  annotation,  and  it  is  therefore  confidently 
believed  that  the  publication  will  meet  with  the  universal  approval  of 

_u.      the  legal  fraternity. 

D.  W.  LUSK. 
SPRINGFIELD,  ILL.,  April  11,  1888. 


PREFACE. 


Illinois  has  been  one  of  the  flrst  states  which  has  attempted  to 
regulate  and  control  railway  and  other  corporations  by  general  laws, 
and  many  questions  have  arisen  both  as  to  the  constitutional  power 
of  the  legislature  to  regulate  the  same,  and  as  to  the  proper  construc- 
tion of  laws  enacted  for  that  purpose.  These  questions  have  been  ably 
discussed  by  eminent  counsel  on  both  sides,  and  it  would  seem  that 
almost  every  question  has  been  presented  and  passed  upon  by  our 
courts.  This  has  resulted  in  many  decisions,  which  lie  scattered 
through  nearly  all  our  State  reports,  thus  making  them  difficult  of 
access.  This  fact  induced  the  author  to  present  this  compilation  of 
the  statutes  and  decisions  in  a  single  volume,  hoping  thereby  to  serve 
the  profession  and  the  courts.  He  has  presented  all  the  statute  laws 
on  the  subject  of  Eminent  Domain,  Railways  and  Public  Warehouses, 
together  with  the  decisions  of  the  Appellate  Court  and  Supreme 
Court  of  the  State  and  those  of  the  Federal  Courts,  and  some  of  the 
more  important  decisions  of  the  courts  of  last  resorts  in  other  states. 

That  part  of  the  work  relating  to  Eminent  Domain  will  be  found 
useful  in  many  if  not  all  the  states.  The  decisions  collected  include 
all  made  since  the  admission  of  Illinois  into  the  Union.  They  embrace 
much  relating  to  the  right  to  condemn  land  for  public  use,  and  by 
what  bodies  or  agencies,  and  the  mode  of  the  exercise  of  the  right, 
both  under  the  Constitution  of  1848  and  that  of  1870.  This  is  especially 
true  as  to  the  proper  measure  of  the  compensation  and  damages  to 
be  paid  by  the  bodies  seeking  to  condemn.  The  cases  given  relate  to 
condemnation  by  cities  and  villages  of  land  for  parks  and  other  public 
uses,  and  for  railway  purposes.  The  cases  denning  the  right  of  one 
railway  company  to  condemn  a  right  of  way  over  or  along  another 
railway,  or  to  condemn  property  already  devoted  to  a  public  use,  will 
be  found  useful,  not  only  to  the  profession  in  this  State,  but  through- 
out the  whole  country. 

The  statutes  and  decisions  relating  to  the  formation  of  railway 
corporations,  their  various  powers,  rights,  duties  and  liabilities,  among 
which  are  the  right  to  enter  cities  and  villages  and  construct  their 
road  and  tracks  in  public  streets  and  highways,  and  the  limitations  on 
that  right,  and  the  powers  of  municipal  corporations  over  the  location 


vi  PREFACE. 

and  grade  of  their  tracks,  and  .to  compel  such  companies  to  make 
street  crossings  and  approaches  thereto,  to  fence  their  tracks  and  keep 
flagmen  at  street  crossings,  are  presented  in  detail. 

The  statutes  and  decisions  are  given  relating  to  the  capital  stock 
of  corporations,  its  increase,  the  forfeiture  of  stock,  its  mode  of  trans- 
fer, its  sale  on  execution,  and  the  individual  liability  of  stockholders 
generally;  also  those  relating  to  the  liability  of  railway  companies  for 
injury  to  domestic  animals  from  negligence  at  common  law,  and  from 
a  neglect  to  fence  their  tracks,  and  for  injury  by  the  escape  of  fire 
from  passing  locomotive  engines,  as  well  as  for  injury  from  a  neglect 
to  put  up  warning  boards  at  highway  crossings,  or  to  give  warning  by 
bell  or  whistle  at  such  crossings. 

The  statutes  and  cases  are  given  which  relate  to  the  expulsion  of 
passengers  from  cars,  for  what  causes  and  where,  and  liability  for 
carrying  them  beyond  their  stations,  the  right  of  the  State  to  regulate 
and  control  railways  by  proper  police  regulations,  to  regulate  and  fix 
the  rates  of  charges  by  railways  and  public  warehouses,  and  to  prevent 
and  punish  extortion  and  unjust  discrimination,  and  the  right  of  car- 
riers to  limit  their  liability. 

The  work  is  not  designed  to  present  all  the  cases  relating  to  the 
common  law  liability  of  railways  for  negligence,  but  rather  those  of 
liability  for  neglect  of  statutory  duties;  but  as  the  doctrine  of  con- 
tributory and  comparative  negligence  applies  to  cases  of  injury  from 
neglect  under  the  statute,  the  cases  on  that  subject  are  presented 
generally. 

The  statutes  and  cases  relating  to  the  inspection  of  grain,  and  to 
public  warehouses  and  warehouse  receipts  are  also  given,  besides 
many  other  matters  of  general  importance. 

While  the  work  is  devoted  to  the  laws  of  this  State  alone,  yet 
from  the  high  standing  and  great  learning  of  our  courts  of  last  resort, 
and  the  variety  and  importance  of  the  questions  settled  by  them,  it  is 
thought  their  various  rulings  will  be  of  service  to  the  profession  and 
courts  of  other  States,  especially  those  having  similar  statutes. 

W.  H.  MANIER 
CARTHAGE,  ILL.,  April  11,  1888. 


RAILWAY  AND  EMINENT  DOMAIN  LAWS. 


CONSTITUTIONAL  PROVISIONS. 

1.  CONSTITUTION  1848— governs  in  all  cases  arising  under  it. 
Although  the  constitution  of  1848  has  been  suspended  by  the  present 
one,  still  all  rights  acquired  under  -it,  or  under  laws  passed  while  it  was 
in  force,  must  be  tried  by  and  enforced  as  though  it  was  in  full  vigor. 
People  v.  Trustees  of  Schools,  78  111.  136.    See  post  44,  45. 

2.  CONSTITUTION  1870 — acts  prospectively.    The  constitution  of 
1870,  acts   only  prospectively,  leaving   all  past   transactions  unaf- 
fected by  its  provisions.    It  expressly  preserves  and  continues  all 
prior  rights,  &c.,  as  they  were  before  its  adoption.    Chicago  v.  Rum- 
sey,  87  111.  348;  GarricTt  v.  Chamberlain,  97  111.  620.    See  post  44,  45. 

CONSTITUTION  OF  1870. 

3.  SPECIAL  LEGISLATION — in  respect  to  what  prohibited. 
ART.  4,  §  22.     The  general  assembly  shall  not  pass  local  or 
special  laws  in  any  of  the  following  enumerated  cases,  that  is 
to  say:  for —  * 

(a.)  Granting  to  any  corporation,  association  or  individual 
the  right  to  lay  down  railroad  tracks,  or  amending  existing 
charters  for  such  purpose. 

(6.)  Granting  to  any  corporation,  association  or  individual 
any  special  or  exclusive  privilege,  immunity  or  franchise 
whatever. 

(c. )  In  all  other  cases  where  a  general  law  can  be  made 
applicable,  no  special  law  shall  be  enacted.  E.  S.  1887,  p.  58; 
S.  &  C.,  p.  119,  120;  Cothran,  p.  9. 

DECISIONS. 

4.  GENERAL  LEGISLATION — what  is.    General  laws  are  such  as 
relate  to  or  bind  all  within  the  jurisdiction  of  the  law-making  power, 
limited  as  that  power  may  be  in  its  territorial  operation,  or  by  consti- 
tutional restraint.    People  v.  Cooper,  83  111.  585. 

5.  A  general  law  operates  alike  upon  all  persons  or  things  of  the 
same  class.    Its  generality  is  not  affected  by  the  number  of  those 
within  the  scope  of  its  operation.    People  v.  Wright,  70  111.  388. 

6.  Whether  a  law  is  general  does  not  depend  upon  the  number  of 
those  within  the  scope  of  its  operation.    It  is  not  necessary  that  it 
shall  operate  upon  every  person  in  the  state;  but  it  is  sufficient  if 
every  person  who  is  brought  within  the  relations  and  circumstances 
provided  for,  is  affected  thereby.    Nor  is  it  Accessary  that  it  shall  be 

o 


-  RAILROADS,  WAREHOUSES, 


made  equally  applicable  to  all  parts  of  the  state.  It  will  be  sufficient 
if  it  extends  to  all  persons  doing,  or  omitting  to  do  an  act  within  the 
territorial  limits  described  in  the  statute.  People  v.  Hoffman, 
116  111.  587. 

7.  A  law  is  general  and  uniform,  and  not  subject  to  the  objection 
of  being  local  or  special,  where  it  is  general  and  uniform  in  its  opera- 
tion upon  all  in  the  like  situation.    People  v.  Hazlewood,  116  111.  319; 
Hawthorn  v.  People,  109  111.  302,  312. 

8.  Law  is  general,  not  because  it  operates  on  many  or  few  persons 
in  the  state,  but  because  every  one  who  is  brought  within  its  provis- 
ions is  affected  by  it.    Potwin  v.  Johnson,  108  111.  70. 

9.  LOCAL  OR  SPECIAL,  LAWS— command  to  enact,  general.    This 
provision  against  local  and  special  laws  is  equivalent  to  a  command 
that  general  laws  alone  be  enacted.    People  v.  Cooper,  83  111.  585. 

10.  SAME — depending  on  local  option.    A  law  is  "local  or  special," 
which  by  reason  of  local  option,  is  repealed,  or  has  its  vitality  as  a  law 
suspended  in  one  locality,  where  exists  a  proper  subject  matter  on 
which  to  operate,  but  remains  in  full  force  and  vigor  in  another  locality 
of  precisely  the  same  kind,  or  in  the  same  locality,  is  law  or  not  law, 
as  shall  suit  the  changing  fancies  of  the  local  authority.    Ib. 

11.  SAME — not  affected  by  being  temporary.    A  local  or  special 
statute  is  limited  in  .the  object  to  which  it  applies.    A  temporary 
statute  is  limited  merely  in  its  duration.    A  local  or  special  law  may 
be  perpetual,  or  a  general  law  may  be  temporary.    The  "mayor's  bill" 
is  neither  local  nor  special,  but  is  a  temporary  general  law.    People  v. 
Wright,  70  111.  388. 

12.  LAWS  HELD  LOCAL  OR  SPECIAL— act  of  1865— sheriff  fees. 
The  act  of  1865,  as  amended,  relating  to  sheriff  fees  in  certain  coun- 
ties, being  a  special  law,  is  of  doubtful  constitutionality.    Alexander 
County  v.  Myers,  64  111.  37. 

13.  JURY  SERVICE.    Xot  competent  for  the  legislature  to  make  an 
exception  in  favor  of  Chicago  as  to  service  on  juries.    In  Re  Scran- 
ton,  74  111.  161. 

14:.  AMENDING  CHARTER.  An  amendment  of  a  prior  special  char- 
ter can  not  be  made  by  a  local  or  special  law.  Andrews  v.  People,  75 
111.  605;  People  v.  Cooper,  83  111.  585. 

15.  FERRY  FRANCHISE.    An  act  to  establish  a  ferry  held  to  be 
special  legislation  and  void.    Frye  v.  Partridge,  82  111.  267. 

16.  FOR  ONE  COUNTY  ONLY.    A  law  classifying  counties  accord- 
ing to  population,  when  only  one  county  can  be  affected,  is  special 
legislation.    Demne  v.  Cook  County,  84  111.  590. 

17.  Act  creating  each  county  in  the  state  a  justice  of  the  peace  dis- 
trict, except  Cook  county,  and  making  two  in  it,  is  in  violation  of  this 
clause  of  the  constitution.    People  v.  Meech,  101  111.  200. 

18.  ACTS  NOT  SPECIAL  LEGISLATION — incorporation   of  cities. 
Art.  9,  §  54,  of  the  "act  to  provide  for  the  incorporation  of  cities  and 
villages,"  approved  April  10,  1872,  held  not  special  legislation.    Guild 
v.  Chicago,  82  111.  472. 

19.  ROAD  LAW.    The  road  and  bridge  law  for  counties  under  town- 
ship organization,  is  not  a  local  or  special  law.    Reynolds  v.  Foster, 
89  111.  257. 

20.  WAREHOUSE  ACT.    Acts  in  Chap.  114,  R.  S.,  classifying  ware- 
houses and  providing  rules  for  each  class,  not  within  the  prohibition. 
Munn  v.  People,  69  111.  80;  People  v.  Harper,  91  111.  357. 

21.  PENALTY  ON  TAXES.    The  one  per  cent,  per  month  penalty 
provided  for  in  the  revenue  law,  Chap.  120,  §  177,  as  amended  in  1879, 


AND  EMINENT  DOMAIN. 


is  not  a  special  law  regulating  the  interest  on  money.    People  v.  Pea- 
cock, 98  111.  172. 

22.  INTEREST  ON  SPECIAL  ASSESSMENT.    Fixing  the  rate  of  inter- 
est installments  of  special  assessments  shall  bear,  is  not  special  legis- 
lation   regulating   interest  on    money.     McChesney   v.   People,  99 
111.  216. 

23.  LOAN  ASSOCIATIONS.    The  act  of  April  4,  1872,  entitled  "An 
act  to  enable  associations  of  persons  to  become  a  body  corporate  to 
raise  funds  to  be  loaned  only  among  its  members,"  is  not  special  legis- 
lation.   Holmes  v.  Smythe,  100  111.  413;  Freeman  v.  Ottawa  Building 
H.  &  S.  Association,  114  111.  182. 

24.  DISSOLUTION  OF  INSOLVENT   INSURANCE  COMPANIES.    The 
statul  e  for  the  dissolution  of  insurance  companies  for  insolvency,  is 
not  a  special  law.    Ch.  Life  Ins.  Co.  v.  Auditor,  101  111.  82. 

25.  LIMITATION  AS  TO  MUNICIPAL  SUBSCRIPTION.    Acts  limiting 
the  time  for  the  enforcement  of  corporate  liability  on  municipal  sub- 
scription in  aid  of  improvement,  held  not  special  legislation.   People  v. 
Granville,  104  111.  285. 

26.  AFFIDAVIT  OF  MERITS  IN  ATTACHMENT.    The  requirement  in 
the  act  for  the  attachment  of  boats  or  water  craft,  that  the  defend- 
ant shall  file  an  affidavit  of  merits,  is  not  special  legislation.    Johnson 
v.  Elevator  Co.,  105  111.  462. 

27.  JUDGMENT  AGAINST  SURETY.    The  statutory  provision  that 
judgment  shall  pass  against  surety  without  service  or  appearance,  is 
not  special  legislation,  as  it  applies  to  all  bonds  of  that  kind.    John- 
son v.  Elevator  Co.,  105  111.  462. 

28.  CITY  TAXES.    A  statute  for  the  assessment  and  collection  of 
taxes  which  applies  to  all  incorporated  cities  and  towns  in  the  state, 
is  a  general,  and  not  a  special  law.    People  v.  Wallace,  70  I1J.  680. 

29.  CONSTITUTION  OF  1818.    Under  the  constitution  of  1818,  the 
legislature  had  the  power  to'  pass  laws  for  particular  cases.    Edwards 
v.  Pope,  3  Scam.  465;  Lane  v.  Dor  man,  3  Scam.  238. 

30.  SPECIAL  ASSESSMENTS.    The  provision  in  the  general  muni- 
cipal incorporation  act  for  making  and  enforcing  special  assessments 
by  corporations  formed  under  the  act,  is  not  special  legislation.    Pot- 
win  v.  Johnson,  108  111.  70;  Kilian  v.  Clark,  9  Bradw.  426. 

31.  ELECTIONS  IN  CITIES.    The  act  of  1885,  relating  to  elections  in 
cities,  &c.,  is  not  a  local  or  special  law.    The  fact  that  such  law  has 
no  operation  in  a  city  until  adopted  by  the  voters  thereof,  does  not 
render  it  local  or  special.    A  general  law  may  depend  on  some  contin- 
gency as  to  when  it  takes  effect  in  a  particular  locality.    People  v. 
Hoffman,  116  111.  587. 

32.  SPECIAL  LEGISLATION  NOT  PROHIBITED — inspection  of  grain. 
The  statute  for  the  inspection  Of  grain  in  Chicago,  is  in  a  certain 
sense  a  local  and  special  law,  but  is  not  within  the  constitutional  inhi- 
bition.   The  inspection  of  grain  is  not  enumerated  in  the  clause. 
People  v.  Harper,  91  111.  357. 

33.  SCHOOLS— providing  for  system.    This  clause  prohibits  special 
laws  for  the  management  of  schools,  but  not  special  laws  providing 
for  funds  for  the  support  of  schools;  nor  does  it  limit  the  legislature 
in  the  means  of  providing  for  a  system  of  schools.    Fuller  v.  Heath, 
89  111.  296. 

34.  N"or  does  it  limit  the  power  of  forming  districts  and  providing 
who  shall  levy  and  collect  taxes.    Speight  v.  People,  87  111.  595. 

35.  SALE  OR  MORTGAGE.    The  provision  forbidding  special  legis- 
lation regulating  the  sale  or  mortgage  of  lands  of  minors  or  others 


RAILROADS,  WAREHOUSES, 


under  disability,  does  not  apply  to  a  sale  or  mortgage  of  land  of  asso- 
ciations of  any  kind.    Haps  v.  Hewitt,  97  111.  498. 

36.  TOWNSHIP  ORGANIZATION.    The  legislature  may  provide  some- 
what different  means  for  the  government  and  management  of  towns 
lying  wholly  in  the  country,  and  those  in  an  incorporated  city,  without 
making  the  law  local  or  special.    People  v.  Hazelwood,  116  111.  319. 

37.  SAME— constitution  of  1848  construed.    §  6,  Art.  7  of  the  con- 
stitution of  1848,  that  "the  general  assembly  shall  provide  by  a  gen- 
eral law  for  township  organization,"  &c.,  relates  to  the  management 
of  the  affairs  of  the  several  towns  of  the  counties  adopting  the  sys- 
tem, and  not  to  the  management  of  the  fiscal  affairs  of  the  counties. 
Leach  v.  People,  —  111.  — ;  filed  June,  1887. 

38.  Acts  held  not  local  or  special  legislation  or  otherwise  uncon- 
stitutional.   Covington  v.  East  St.  Louis,  78  111.  548;  Guild  v.  Chicago, 
82  111.  472;  People  v.  Cooper,  83  111.  585;  People  v.  Harper,  91  111.  357; 
Haps  v.  Hewitt,  97  111.  498;  Ch.  Life  Ins.  Co.  v.  Auditor,  101  111.  82; 
Klokke  v.  Dodge,  103  111.  125;  People  v.  Meech,  101  111.  200;  Knicker- 
bocker v.  People,  102  111.  218;  Hinckley  v.  Dean,  104  111.  630;  People  v. 
Granmlle,  104  111.  285;  Johnson  v.   Ch.  &  Pac.  Elevator  Co.,  105  111. 
462;  Hawthorn  v.  People,  109  111.  302;  Williams  v.  People,  121  111.  84. 

39.  SPECIAL    OR   EXCLUSIVE   PRIVILEGE,  &c.    The  prohibition 
against  granting  any  special  or  exclusive  privilege,  &c.,  extends  only 
to  the  passing  of  local  or  special  laws  for  that  purpose.    Munn  v. 
People,  69  111.  80. 

40.  SAME — applies  only  to  legislature.     The  prohibition  of  the 
grant  of  any  special  or  exclusive  privilege,  &c.,  is  a  limitation  upon 
the  power  of  the  legislature,  and  not  upon  the  powers  of  a  city  to  give 
leave  to  build  a  railroad  upon  its  streets.    Ch.  City  R.  R.  v.  People, 
73  111.  541. 

41.  SAME— dram  shop  act.    The  dram  shop  act  of  1872,  is  not 
unconstitutional  as  granting  special  or  exclusive  privileges.    Streetor 
v.  People,  69  111.  595. 

42.  APPLICABILITY  OF  GENERAL  LAW — who  may  decide.    The 
constitution  of  1848  provided  that  private  corporations  should  not  be 
created  by  special  acts,  except  where  the  objects  of  the  corporation 
could  not  be  attained  under  general  laws.    (Art.  10,  §  1.)    Under  this, 
when  a  corporation  was  created  by  special  act,  the  court  held  that  it 
would  presume,  without  any  recital  or  preamble,  that  the  general 
assembly  considered  the  object  sought  could  not  be  attained  by  a 
general  law.    Johnson  v.  /.  &  C.  R.  R.,  23  111.  202. 

43.  This  clause  prohibiting  special  legislation  "where  a  general 
law  can  be  made  applicable,"  addresses  itself  to  the  legislature  alone. 
When  that  body  has  concluded  that  a  special  law  is  necessary,  except 
in  the  cases  prohibited,  its  conclusion  is  not  the  subject  of  judicial 
review.    Owners  of  Land  v.  People,  113  111.  296,  315. 

44.  Xo  APPLICATION  TO  PAST  LEGISLATION.    This  clause  of  the 
constitution  has  no  reference  to  past  legislation,  but  simply  prescribes 
the  limits  of  future  legislation  in  the  respects  named.    Covington  v. 
East  /St.  Louis,  78  111.  548;  Guild  v.   Chicago,  82  111.  475;  People  v. 
Cooper,  83  111.  585. 

45 .  It  does  not  invalidate  special  city  charters  previously  granted. 
Covington  v.  East  St.  Louis,  78  111.  548.    See  ante  1,  2. 


AND  EMINENT  DOMAIN. 


CONSTITUTION  Or  1870. 

46.  SPECIAL  LEGISLATION — prohibited.  ART.  11,  §  1.  No 
corporation  shall  be  created  by  special  laws,  or  its  charter  ex- 
tended, changed  or  amended,  except  those  for  charitable,  edu- 
cational, penal  or  reformatory  purposes,  which  are  to  be  and 
remain  under  the  patronage  and  control  of  the  state,  but  the 
general  assembly  shall  provide,  by  general  laws,  for  the  organ- 
ization of  all  corporations  hereafter  to  be  created.  B.  8. 
1887,  p.  71;  S.  &  C.,  p.  160;  Cothran,  p.  28. 

47.  CURATIVE  LEGISLATION.    The  legislature  has  the  same  power 
to  validate  irregularly  organized  corporations  as  it  has  to  create  a  new 
one.    Mitchell  v.  Deeds,  49  111.  416. 

48.  No  REPEAL  OF  GENERAL  LAW—  corporations  under.     This 
clause  of  the  constitution  does  not  repeal  the  general  law  on  the  sub- 
ject of  private  corporations  in  force  prior  to  its  adoption,  and  all 
corporations  formed  under  such  laws,  after  the  adoption  of  the  con- 
stitution, are  valid.    Meeker  v.  Cast  Steel  Co.,  84  111.  276. 

49.  Under  the  constitution  of  1848  (Art.  10,  §  2),  the  word  "  corpo- 
rators "  is  used  in  the  sense  of  shareholders  and  not  that  of  commis- 
sioners or  promoters.     Gulliver  v.  Roelle,  100  111.  141. 

50.  PRIVATE  CORPORATIONS— subject  to  police  power.    Private 
corporations  are  subject  to  the  police  power  of  the  state,  and  the 
legislature  may  direct  and  control  them  in  the  use  of  their  franchises 
the  same  as  natural  persons.     G.  &  C.  U.  R.  R.  v.  Loomis,  13  111.  548; 
Bank  v.  Hamilton  Co.,  21  111.  53,  59;  Reapers  Bank  v.  Willard,  24  111. 
433;  N.  W.  Fertilizing  Co.  v.  Hyde  Park,  70  111.  634;  Rugyles  v.  People, 
91  111.  256;  &.  &  Ch.  Union  R.  R.  v.  Dill,  22  111,  269;   Ward  v.  Farwell, 
97  111.  593;  C.  &  A.  R.  R.,  v.  People,  105  111.  657;  0.  &.  M.  R.  R.  v.  Mc- 
Clellan,  25  111.  140. 

51.  Corporation  formed  to  do  "  rendering,"  may  under  the  police 
power  be  prohibited  from  carrying  on  such  business.    N.  W.  Fertili- 
zing Co.  v.  Hyde  Park,  70  111.  634. 

52.  POLICE  POWER — not  unlimited.    The  police  power  is  subject 
to  constitutional  limitations.    Police  regulations  must  have  reference 
to  the  comfort,  safety  and  welfare  of  society ;  and  when  applied  to 
corporations,  they  must  not  be  in  conflict  with  any  of  the  rights  se- 
cured by  their  charters.    Lake  View  v.  Rose  Hill  Cem.  Co.,  70  111.  191. 

53.  STOPPAGE  OF  R.  R.  TRAINS.    The  statute  requiring  all  regular 
passenger  trains  to  stop  at  county  seats,  is  a  proper  police  regulation. 
C.  &  A.  R.  R.  v.  People,  105  111.  657. 

54.  Reservation  in  charter  that  the  legislature  may  alter  or  repeal 
the  same,  gives  the  power  to  change  it.    Butler  v.  Walker,  80  111.  345. 

55.  CHARTER,  A  CONTRACT— mwoZa&iZi£y  of.    The  charter  of  a 
private  corporation  is  a  contract  with  which  the  legislature  may  not 
interfere,    Bruffett  v.  Great   Western  R.  R.,  25  111.  353;  Rugyles  v. 
People,  91  111.  256. 

56.  REPEAL  OF  CHARTER.    An  act  which  attempts  to  repeal  a 
railroad  charter  and  confer  the  powers  and  property  of  the  corpora- 
tion upon  another  body,  with  a  view  to  declare  a  forfeiture,  or  create 
a  dissolution,  is  unconstitutional.    Bruffett  v.  Great  Western  R.  R.,  25 
111.  353. 

57.  MUNICIPAL  CORPORATIONS.    Their  powers,  rights,  funds  and 
revenues  subject  to  legislative  control.    Pike  Co.  v.  State,  11  111.  208; 


KAILBOADS,  WAREHOUSES, 


Richland  Co.  v.  Lawrence  Co.,  12  111.  1,  8;  Trustees  of  School  v.  Tai- 
man,  13  111.  27,  30;  Dennis  v.  Maynard,  15,  111.  477,  480;  People  v. 
Power,  25  111.,  187,  191;  Qreenleaf  v.  Trustees,  22  111.  236;  Mt.  Carmel 
v.  Wabash  Co.,  50  111.  69,  72;  Logan  Co.  v.  C%  o/P  Lincoln,  81  111. 
156;  Owners  of  Land  v.  PeopZe,  113  111.  296;  Marion  Co.  v.  Lear,  108 
111.  343. 

58.  CORPORATIONS  —  limitation  as  to  organizing.     ART. 

II,  §  2.     All  existing  charters  or  grants  of  special  or  exclu- 
sive  privileges,   under   which   organization   shall   not  have 
taken  place,  or  which  shall  not  have  been  in  operation  within 
ten  days  from  the  time  this  constitution  takes  effect,  shall 
thereafter  have  no  validity  or  effect  whatever.     R.  S.  1887, 
p.  71;  S.   &  C.,   p.   161;    Cothran,    p.    28.     See  People    v. 
Lowenthal,  93  111.  191;  Anthony  v.  International  Bank,  93 

III.  225;  Peoria  &  Pekin  Union  Ry.  v.  Peoria  &  Farming- 
ton  By.,  105  111.   110,  116;  McCartney  v.  C.  &  E.  Ry.,  112 
111.  611. 

59.  CORPORATIONS — election  of  directors — minority  rep- 
resentation.    ART.  11,  §  3.     The  general  assembly  shall  pro- 
vide by  law,  that  in  all  elections  for  directors  or  managers  of 
incorporated  companies,   every  stockholder   shall   have   the 
right  to  vote  in  person,  or  by  proxy,  for  the  number  of  shares 
of  stock  owned  by  him,  for  as  many  persons  as  there  are 
directors  or  managers  to  be  elected,  or  to  cumulate  said  shares, 
and  give  one  candidate  as  many  votes  as  the  number  of  direc- 
tors multiplied  by  the  number  of  his  shares  of  stock  shall 
equal,  or  to  distribute  them  on  the  same  principle  among  as 
many  candidates  as  he  shall  think  fit;  and  such  directors  or 
managers  shall  not  be  elected  in  any  other  manner.     R.  S. 
1887,  p.  71;  S.  &  C.  p.  161;  Cothran,  p.  28.     See  post  1459. 

60.  STREET    RAILROADS — consent  of  public  authorities. 
ART.  11,  §  4.     No  law  shall  be  passed  by  the  general  assem- 
bly granting  the  right  to  construct  and  operate  a  street  rail- 
road within  any  city,  town  or  incorporated  village,  without 
requiring  the  consent  of  the  local  authorities  having  the  con- 
trol of  the  street  or  highway  proposed  to  be  occupied  by  such 
street  railroad.     E.  S.  1887,  p.  71;  S.  &  C.  p.  161;  Cothran, 
p.  28.'    See  post  117-171. 

61.  RAILROADS — place  of  office-  books — reports.      ART. 
11,  §  9.     Every  railroad  corporation  organized  or  doing  busi- 
ness in  this  state,  under  the  laws  or  authority  thereof,  shall 
have  and  maintain  a  public  office  or  place  in  this  state  for  the 
transaction  of  its  business,  where  transfers  of  stock  shall  be 
made,   and  in   which   shall  be   kept,  for  public   inspection, 
books,  in  which  shall  be  recorded  the  amount  of  capital  stock 
subscribed,    and  by  whom;  the   names  of  the  owners  of  its 
stock,   and   the   amounts  owned  by  them   respectively;  the 
amount  of  stock  paid  in,  and  by  whom ;  the  transfer  of  said 


AND  EMINENT  DOMAIN. 


stock;  the  amount  of  its  assets  and  liabilities,  and  the  names 
and  place  of  residence  of  its  officers.  The  directors  of  every 
railroad  corporation  shall,  annually,  make  a  report,  under 
oath,  to  the  auditor  of  public  accounts,  or  some  officer  to  be 
designated  by  law,  of  all  their  acts  and  doings,  which  report 
shall  include  such  matters  relating  to  railroads  as  may  be 
prescribed  by  law.  And  the  general  assembly  shall  pass  laws 
enforcing  by  suitable  penalties  the  provisions  of  this  section. 
E.  S.  1887,  p.  71;  S.  &  C.,  p.  162;  Cothran,  p.  29.  See  post 
1174, 1471;  see  Eminent  Domain,  Ch.  47,  §  1;  Infra  179-1071. 

62.  EAILROADS— rolling  stock,  &c.,  personal  property. 
ART.  11,  §  10.  The  rolling  stock,  and  all  other  movable 
property  belonging  to  any  railroad  company  or  corporation 
in  this  state,  shall  be  considered  personal  property,  and  shall 
be  liable  to  execution  and  sale  in  the  same  manner  as  the  per- 
sonal property  of  individuals,  and  the  general  assembly  shall 
pass  no  law  exempting  any  such  property  from  execution  and 
sale.  R  S.  1887,  p.  72;  S.  &  C.,  p.  162;  Cothran,  p.  29.  See 
post  1369. 

63 .  EOLLING  STOCK— changed  from  realty  to  personal  property. 
Prior  to  the  adoption  of  the  constitution,  the  rolling  stock  of  railway 
companies  was  real  estate.    Palmer  v.  Forbes,  23  111.  301,312;  Hunt  v. 
Bullock,  23  111.  320;  Titus  v.  Mabec,  25  111.  257;  Titus  v.  (Jinheimer,  27. 
111.  462;  Mich.  Cent.  R.  R.  v.  Chi.  &c.,  R.  R.  1  Bradw.  399.    See  C.  &  A. 
R.  R.  v.  Goodwin,  111  111.  273;  Johnson  v.  Roberts,  102  111.  655;  C.  &  A. 
R.  R.  v.  People,  98  111.  350;  Maus  v.  L.  P.  &  JB.  R.  R.,  27  111.  77. 
See  post  1369-1375. 

64 .  The  doctrine  that  realty,  franchises,  &c.,  of  a  railway,  mort- 
gaged as  an  entirety,  may  be  sold  as  an  entirety  under  a  decree  in 
equity,  without  any  right  of  redemption,  is  not  in  conflict  with  this 
constitutional  provision.    Hammock  v.  Loan  &  Trust  Co.,  105  U.S.  77. 

65.  Nor  does  such  provision  change  the  rule,  that  a  mortgage 
made  by  a  railway  company,  covering  after-acquired  property,  holds 
such  property  as  against  creditors  obtaining  judgments  and  execu- 
tions after  the  company  has  received  possession  of  such  property. 
Scott  v.  Clinton,  &c.,  R.  R.,  6  Biss.  529. 

66 .  The  rolling  stock  of  a  railroad  is  a  part  of  the  realty  so  as  to 
pass  by  a  mortgage  or  conveyance  of  the  road.    M.  C.  R.  R.  v.  C.  & 
M.  L.  tf.  R.  R.,  1  Brariw.  399. 

67.  KAILROAD  COMPANIES — limitation  as  to  consolida- 
tion— directors  residence.  ART.  11,  §  11.  No  railroad  cor- 
poration shall  consolidate  its  stock,  property  or  franchises 
with  any  other  railroad  corporation  owning  a  parallel  or 
competing  line;  and  in  no  case  shall  any  consolidation  take 
place,  except  upon  public  notice  given,  of  at  least  sixty  days, 
to  all  stockholders,  in  such  manner  as  may  be  provided  by 
law.  A  majority  of  the  directors  of  any  railroad  corporation, 
now  incorporated  or  hereafter  to  be  incorporated  by  the  laws 
of  this  state,  shall  be  citizens  and  residents  of  this  state. 
E.  S.  1887,  p.  72;  S.  &  C.,  p.  163;  Cothran,  p.  29. 


EAILEOADS,  WAREHOUSES, 


This  section  cited  in  Chicago  &  Western  Indiana  R.  R.  v.  Dunbar, 
95  I1L  578.  See  post  1187, 1386-1421, 1425. 

68.  RAILWAYS — declared  public  highways— fixing  maxi- 
mum rates  of  charges.  ART.  11,  §  12.  Railways  heretofore 
constructed,  or  that  may  hereafter  be  constructed  in  this  state, 
are  hereby  declared  public  highways,  and  shall  be  free  to  all 
persons  for  the  transportation  of  their  persons  and  property 
thereon,  under  such  regulations  as  may  be  prescribed  by  law. 
And  the  general  assembly  shall,  from  time  to  time,  pass  laws 
establishing  reasonable  maximum  rates  of  charges  for  the 
transportation  of  passengers  and  freight  on  the  different  rail- 
roads in  this  state.  R.  S.  1887,  p.  72;  S.  &  C.,  p.  163;  Goth- 
ran,  p.  29.  See  post  1428-1458. 

69 .  HIGHWAYS — in  what  sense.    Railroads  are  highways,  not  in 
the  sense  of  public  wagon  roads,  upon  which  every  one  may  transact 
his  own  business  with  his  own  means  of  conveyance,  but  only  in  the 
sense  of  being  compelled  to  accept  of  each  and  all,  and  take  and  carry 
to  the  full  extent  of  their  ability.    T.  P.  &  W.  Ry.  v.  Pence,  68  111. 
524;  Central  Military  Tract  R.  R.  v.  Rockafellow,  17  111.  541,  557. 

70.  This  clause  of  the  constitution  does  not  affect  the  liability  of  a 
railway  company  for  a  neglect  to  fence  its  road.    T.  P.  &  W.  Ry.  v. 
Pence,  68  111.  524. 

71.  A  private  switch  from  a  railroad  to  coal  lands,  which  is  not 
owned  by  the  railway  company,  but  by  individuals  for  their  own  pri- 
vate use,  is  not  a  public  highway  within  the  meaning  of  this  provis- 
ion of  the  constitution.    That  section  applies  only  to  public  railroads. 
Koelle  v.  Knecht,  99  111.  396. 

72.  When  a  railroad  track  is  laid  down  in  a  street  by  authority  of 
the  city  council,  to  connect  a  private  manufacturing  establishment 
with  other  railroad  tracks,  it  becomes  a  public  highway,  and  the  city 
council  nave  a  right  to  devote  a  portion  of  the  street  to  that  use. 
Parlin  v.  Mills,  11  Bradw.  396;  Truesdale  et  al  v.  Grape  Sugar  Co. 
101  111.  567. 

73.  Held  applicable  to  track  laid  to  connect  factory  with  railway, 
Parlin  v.  Mills,  1 1  Bradw.  396. 

74.  Railways  are  public  highways  only  so  far  as  owners  and  oper- 
ators are  subject  to  duties  of  common  carriers.    T.  P.  &  W.  Ry.  v. 
Pence,  68  ill.  524. 

75 .  RIGHT  or  STATE  TO  FIX  OK  LIMIT  KATES  CHARGED.    In  an 
action  under  the  act  April  13, 1871,  to  recover  of  a  railway  company  for 
an  overcharge  of  passenger  fare  made  before  the  railroad  commission- 
ers had  assigned  the  defendant's  road  to  any  class  as  required  by  that 
act,  there  was  no  proof  that  the  charge  made  was  unreasonable*  or  to 
what  class  the  road  belonged.    Held  that  plaintiff  could  not  recover. 
Moore  v.  III.  Central  R.  R.,  68  111.  385. 

76.  To  hold  a  railroad  company  liable  to  the  penalties  provided  in 
the  act  of  May  2, 1873,  on  the  ground  of  extortion,  it  must  be  shown 
that  it  charged  more  than  the  maximum  rates  fixed  by  the  board  of 
railroad  and  warehouse  commissioners;  and  until  these  rates  are  fixed, 
no  liability  can  be  incurred  under  the  statute,  for  unreasonable  or 
extortionate  charges,  and  when  made,  the  taking  of  the  rates  named, 
or  less  rates  will  not  incur  the  penalty,  even  though  the  proof  shows 
them  to  be  more  than  fair  and  reasonable  rates.    C.  B.  &  Q.  R.  R.  v. 
People,  77  111.  443. 


AND  EMINENT  DOMAIN. 


77.  An  express  grant  of  power  to  a  railway  company  to  fix  the 
rates  of  tolls  to  be  charged,  and  to  alter  and  change  the  same,  does  not 
confer  unlimited  power,  but  only  the  right  to  charge  reasonable  rates, 
and  what  is  a  reasonable  maximum  rate  may  be  fixed  by  statute. 
Ruggles  v.  People,  91  111.  256. 

78 .  The  legislature  has  the  power  to  fix  a  maximum  rate  of  charges 
by  individuals  as  common  carriers,  warehousemen,  or  others  exer- 
cising a  calling  or  business  public  in  its  character,  or  in  which  the 
public  have  an  interest  to  be  protected  against  extortion  or  oppression, 
and  it  has  the  same  rightful  power  in  respect  to  corporations  exercis- 
ing the  same  business,  and  such  regulation  does  not  impair  the  obliga- 
tion of  the  contract  in  their  charters.    Ib. 

79.  The  act  of  April  17,  1871,  entitled  "An  act  to  establish  a  rea- 
sonable maximum  rate  of  charges  for  the  transportation  of  passengers 
on  railroads  in  this  state,"  is  not  unconstitutional,  but  is  a  valid  law.  Ib. 

80.  The  act  of  April  25,  1871,  entitled  "An  act  to  regulate  public 
warehouses  and  the  warehousing  and  inspection  of  grain,  and  to  give 
effect  to  article  13  of  the  constitution,"  and  which  provides  a  maxi- 
mum rate  of  charges,  is  not  in  violation  of  that  clause  of  the  bill  of 
rights  which  declares  that  no  person  shall  be  deprived  of  life,  liberty 
or  property  without  due  process  of  law,  nor  of  that  clause  which  pro- 
vides that  "private  property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation."    Munn  v.  People,  69  111.  80. 

81 .  The  act  of  May  2,  1873,  to  prevent  extortion  and  unjust  dis- 
crimination in  railroads,  is  a  constitutional  enactment,  and  is  not  in 
violation  of  the  contract  between  the  state  and  the  railroad  compa- 
nies, growing  out  of  the  granting  and  accepting  their  charters,  con- 
taining power  to  establish  such  rates  of  toll  for  the  conveyance  of 
persons  and  property  as  they  shall  from  time  to  time,  direct  and  deter- 
mine in  the  by-laws.    /.  C.  R.  R.  v.  People,  95  111.  313. 

82.  The  right  of  a  state  to  reasonably  limit  the  amount  of  charges 
by  a  railroad  company  for  the  transportation  of  persons  and  property 
within  its  jurisdiction,  cannot  be  granted  away  by  its  legislature, 
unless  by  words  of  positive  grant,  or  words  equivalent  in  law.    Rail- 
road commission  cases,  116  U.  S.  307. 

83 .  A  statute  which  grants  to  a  railroad  company  the  right  "from 
time  to  time  to  fix,  regulate  and  receive  the  tolls  and  charges  by  them 
to  be  received  for  transportation,"  does  not  deprive  the  state  of  its 
power,  within  the  limits  of  its  authority  as  controlled  by  the  constitu- 
tion of  the  United  States,  to  act  upon  the  reasonableness  of  the  tolls 
and  charges  so  fixed  and  regulated.    Ib.;   Stone  v.  III.  Central  R. 
R.,  116  U.  S.  347:  Stone  v.  N.  O.  &  N.  E.  R.  R.,  116  U.  S.  352. 

84 .  It  is  the  settled  doctrine  in  the  Supreme  Court  of  the  United 
States  that  a  state  has  the  power  to  limit  the  amount  of  charges  by 
railroad  companies  for  the  transportation  of  persons  and  property 
within  its  own  jurisdiction,  unless  restrained  by  some  contract  in  the 
charter,  or  unless  what  is  done  amounts  to  a  regulation  of  foreign,  or 
inter-state  commerce.    Railroad  commission  cases,  116  U.  S.  307:  R. 
R.  v.  Maryland,  21  Wall.  456;  C.  B.  &  Q.  R.  R.  v.  Iowa,  94  U.  S.  155; 
Peik  v.  Ch.  &  N.  W.  Ry.,  94  U.  S.  164;  Winona  &  St.  Paul  R.  R.  v. 
make,  94  U.  S.  180;  Ruggles  v.  Illinois,  108  U.  S.  526. 

85.  The  act  entitled  "An  act  to  regulate  public  warehouses  and 
the  warehousing  and  inspection  of  grain,  and  to  give  effect  to  article 
13  of  the  constitution  of  this  state,"  approved  April  25,  1871,  is  not 
repugnant  to  the  constitution  of  the  United  States.    Munn  v.  Illinois, 
94  U.  S.  113. 

86.  For  other  cases  asserting  the  power  of  the  states  to  regulate 
the  rates  of  railroad  charges  on  business  not  inter-state  in  its  nature, 


10  EAILEOADS,  WAREHOUSES, 

see  Ch.,  M.  &  St.  P.  R.  R.  v.  Ackley,  4  Otto,  179:  Winona  &  St.  Peter 
R.  R.  v.  Slake,  4  Otto,  180;  Peik  v.  Ch.  &  N.  W.  Ry.,  4  Otto,  164; 
Stone  v.  Wisconsin,  94  U.  S.  181;  Union  Pacific  R.  R.  v.  U.  8.,  99  U. 
13.  700;  Hinckley  v.  Ch.,  M.  &  St.  P.  Ry.,  38  Wis.  194;  State  v.  Wi- 
nona &  St.  Peter  R.  R.,W  Minn.  434;  C.  H.  &  D.  R.  R.  v.  Cole,  29  Ohio 
St.  126;  Iron  R.  R.  v.  Lawrence  Furnace  Co.;  Id.  208;  Mobile  &  M. 
Ry.  v.  Steiner,  61  Ala.  559;  Parker  v.  Metropolitan  R.R.,  i09  Mass. 
506;  Shields  v.  Ohio,  95  U.  S.  319;  American  Coal  Co.  v.  Consolidation 
Coal  Co.,  46  Md.  15;  Attorney  General  v.  Railroad  Companies,  35 
Wis.  435;  L.  S.  &  M.  S.  Ry.  v.  C.  S.  &  C.Ry.,  30  Ohio  St.  604. 

87.  RAILWAY  COMPANY — limitation  on  issue  of  bonds  or 
stock,  or  increase  of  capital  stock.     ART.  11,  §  13.     No  rail- 
road corporation  shall  issue  any  stock  or  bonds,  except  for 
money,  labor  or  property  actually  received,  and  applied  to 
the  purposes  for  which  such  corporation  was  created;  and  all 
stock  dividends,   and  other  fictitious  increase  of  the  capital 
stock  or  indebtedness  of  any  such  corporation,  shall  be  void. 
The  capital  stock  of  no  railroad  corporation  shall  be  increased 
for  any  purpose,  except  upon  giving  sixty  days'  public  notice, 
in  such  manner  as  may  be  provided  by  law.     it.  S.  1887,  p. 
72;  S.  &  C.,  p.  163;  Cothran,  p.  30.     Post  1376-1385. 

88.  This  clause  is  intended  to  prevent  reckless  and  unscrupulous 
speculators  from  fraudulently  issuing  and  putting  upon  the  market 
bonds  or  stocks  that  do  not,  and  are  not  intended  to  represent  money 
or  property  of  any  kind,  either  in  possession  or  expectancy,  the  stock 
or  bonds  in  such  case  being  entirely  fictitious.    Peoria  &  Springfield 
R.  R.  v.  Thompson,  103  111.  187. 

89 .  It  was  not  intended  by  that  provision  to  interfere  with  the 
usual  and  customary  methods  of  raising  funds  by  railroad  companies, 
by  the  issue  of  its  stocks,  or  bonds  for  the  purpose  of  building  their 
roads  or  accomplishing  other  legitimate  corporate  purposes.    76. 

90.  Under  this  provision  railroad  companies  have  no  right  to  lend, 
give  away,  or  sell  on  credit  their  bonds  or  stock,  nor  have  they  the 
right  to  dispose  of  either,  except  for  a  present  consideration  and  for  a 
corporate  purpose.    Ib. 

91.  CORPORATIONS — franchises  and  property  of,  subject 
to  right  of  eminent  domain — jury  trial.  ART.  11,  §  14.  The 
exercise  of  the  power,  and  the  right  of  eminent  domain,  shall 
never  be  so  construed  or  abridged  as  to  prevent  the  taking, 
by  the  general  assembly,  of  the  property  and  franchises  of 
incorporated  companies  already  organized,  and  subjecting 
them  to  the  public  necessity  the  same  as  of  individuals.  The 
right  of  trial  by  jury  shall  be  held  inviolate  in  all  trials  of 
claims  for  compensation,  when,  in  the  exercise  of  the  said 
right  of  eminent  domain,  any  incorporated  company  shall  be 
interested  either  for  or  against  the  exercise  of  said  right. 
R  S.  1887,  p.  72;  8.  &  C.,  p.  163;  Cothran,  p.  30.  Post  242-277. 

92 .  Tliis,  together  with  Art.  2,  §  13,  took  effect  immediately  upon 
the  adoption  of  the  constitution,  without  the  aid  of  any  legislation, 
and  operated  as  a  repeal  of  so  much  of  the  act  of  1852,  as  related  to 
giving  of  bond  on  appeal  before  entry.  Mitchell  v.  /.  &  St.  L.  R.  R., 
68  111.  286. 


AND  EMINENT  DOMAIN.  11 

93.  As  to  the  right  of  one  corporation  to  condemn  the  property  or 
franchise  of  another  already  devoted  to  a  public  use,  see  Mills  et  al  v. 
St.  Glair  County,  2  Gilm.  147;  III.  &  Mich.  Canal  \.  Ch.   &  Rock 
Island  R.  R.,  14  111.  314;  P.  P.  &  J.  R.  R.  v.  P.  &  S.  R.  R.,  66  111.  174; 
C.  R.  I.  &  P.  R.  R.  v.  Town  of  Lake.  71  111.  333;  Metropolitan  City  Ry. 
v.  Ch.    West    Division  Ry.,  87  111.  317;    Central   City  Horse  Ry.  v. 
Ft.  Clark  Horse  Ry.,  81  111.  523;  L.  8.  &   M.  S.  Ry.  v.  Ch.  &  W.  Ind. 
R.  R.,  97  111.  506;  St.  L.  J.  &  C.  R.  R.  v.  S.  &  N.  W.  R.  R.,  96  111.  274; 
E.  St.  L.  Connecting  Ry.  v.  E.  St.  L.  Union  Ry.,  108  111.  265;  Ch.  tfr 
N.  W.  Ry.  v.  Ch.  &  Evanston  R.  R.,  112  111.  589;   Ch.  &  W.  Ind.  R. 
R.  y.Ill.  Central  R.  R.,  113  111.  156;   Ch.  &  N.  W.  Ry.  v.  Village  of 
Jefferson,    14  Bradw.  615;    Ch.  &   W.   Ind.  R.  R.  v.  Ch.  St.  L.  £• 
Pittsburg  R.  R.,  15  Bradw.  587.    See  Eminent  Domain.    Post  179- 
1070. 

94.  RAILROADS — duty  of  passing  laws  to  prevent  unjust 
discriminations  and  extortions  by.     ART.  11,  §  15.     The  gen- 
eral assembly  shall  pass  laws  to  correct  abuses  and  prevent 
unjust  discrimination  and  extortion  in  the  rates  of  freight 
and  passenger  tariffs  on  the  different  railroads  in  this  state, 
and  enforce  such  laws  by  adequate  penalties,  to  the  extent,  if 
necessary  for  that  purpose,  of  forfeiture  of  their  property 
and  franchises.     R  S.  1887,  p.  72;  S.  &  C.,  p.  164;  Cothran, 
p.  30.     Post  2645-2725. 

95 .  This  provision  restricts  the  power  of  the  legislature  to  the  pro- 
hibition of  such  discriminations  only  as  are  unjust.    C.  &  A.  R.  R.  v. 
People,  67  111.  11. 

96.  An  act  prohibiting  any  discrimination  under  any  circumstan- 
ces, whether  just  or  unjust,  and  making  a  difference  in  charges  for  the 
same  distance,  conclusive  evidence  of  unjust  discrimination,  and  in- 
flicting a  forfeiture  of  franchises,   &c.,  on  conviction,  is  unconsti- 
tutional.   Ib. 

97.  LIMITATION  OF  ACTION  FOR.    The  liability  imposed  by  the 
statute  upon  railroad  corporations  for  extortion  and  unjust  discrimi- 
nation, giving  triple  damages,  is  a  statutory  penalty,  and  actions  there- 
for must  be  brought  within  two  years  after  the  cause  of  action 
accrued.    St.  Louis,  Alton  &  Terre  Haute  R.  R.  v.  Hill,  11  Bradw.  248. 

98.  DISCRIMINATION  MUST  BE  UNJUST.    In  an  action  under  the 
statute  prohibiting  extortion  and  unjust  discrimination  by  railroad 
companies,  it  must  appear  not  only  that  the  corporation  made  a  dis- 
crimination in  its  rates  of  toll,  but  also  that  such  discrimination  is 
unjust,  and  these  facts  must  be  alleged  in  the  declaration.    76. 

For  laws  and  decisions  as  to  unjust  discriminations  and  extortion, 
see  post  2645-2725. 

99.  WAREHOUSES — what  are  public  warehouses.  ART. 
13,  §  1.  All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property 
stored  be  kept  separate  or  not,  are  declared  to  be  public 
warehouses.  R.  S.  1887,  p.  73;  S.  &  C.,  p.  164;  Cothran,  p.  31. 

100  See  Ch.  114,  §  126-144,  passed  in  pursuance  of  this  article  of 
the  constitution.  Butcher  v.  People,  11  Bradw.  312. 

101.  This  article  cited  in  Munn  v.  Illinois,  94  U.  S.  133,  which 
holds  the  act  passed  in  pursuance  thereof  is  not  in  violation  of  the 
constitution  of  the  United  States. 


12  BAILBOADS,  WAREHOUSES, 

102.  The  act  of  April  25,  1871,  providing  a  maximum  rate  of 
charges  for  warehouses,  does  not  contravene  Art.  2,  §  2,  nor  Art.  4,  § 
22,  of  the  state  constitution,  but  is  a  constitutional  regulation  of  trade 
and  a  valid  law.    Munn  v.  People,  69  111.  80;  Munn  v.  Illinois,  94  U. 
8.  113. 

103 .  The  legislature  may  commit  to  a  board  of  warehouse  com- 
missioners power  to    control  the   inspection    of   grain.    People   v. 
Harper,  91  111.  357. 

As  to  laws  on  this  subject  and  decisions  of  the  courts,  see  post 
2732-2801. 

1 04.  POSTING  REPORTS — mixing  grain  of  different  grades. 
ART.  13,  §  2.     The  owner,  lessee  or  manager  of  each  and 
every  public  warehouse  situated  in  any  town  or  city  of  not 
less  than  100,000  inhabitants,  shall  make  weekly  statements 
under  oath,  before  some  officer  to  be  designated  by  law,  and 
keep  the  same  posted  in  some  conspicuous  place  in  the  office 
of  such  warehouse,  and  shall  also  file  a  copy  for  public  exami- 
nation in  such  place  as  shall  be  designated  by  law,  which 
statement  shall  correctly  set  forth  the  amount  and  grade  of 
each  and  every  kind  of   grain  in  such  warehouse,  together 
with  such  other  property  as  may  be  stored  therein,  and  what 
warehouse  receipts  have  been  issued,  and  are,  at  the  time  of 
making  such  statement,  outstanding  therefor;  and  shall,  on 
the  copy  posted  in  the  warehouse,  note  daily  such  changes  as 
may  be  made  in  the  quantity  and  grade  of  grain  in  such  ware- 
house; and  the  different  grades  of  grain  shipped  in  separate 
lots  shall  not  be  mixed  with  inferior  or  superior  grades  with- 
out the  consent  of  the  owner  or  consignee  thereof.     K.  S. 
1887,  p.  73;  S.  &  C..  p.  165;  Cothran,  p.  31. 

105.  EIGHT  TO  INSPECT  PROPERTY  AND  BOOKS.    ART.  13, 
§  3.     The  owners  of  property  stored  in  any  warehouse,  or 
holder  of  a  receipt  for  the  same,  shall  always  be  at  liberty  to 
examine  such  property  stored,  and  all  the  books  and  records 
of  the  warehouse  in  regard  to  such  property.     E.  S.  1887,  p. 
73;  S.  &  C.,  p.  165;  Cothran,  p.  31. 

106.  WEIGHING  GRAIN — receipt  and  liability  for  delivery 
of  grain.     ART.  13,  §  4.     All  railroad  companies  and  other 
common  carriers  on  railroads  shall  weigh  or  measure  grain 
at  points  where  it  is  shipped,  and  receipt  for  the  full  amount, 
and  shall  be  responsible  for  the  delivery  of  such  amount  to 
the  owner  or  consignee  thereof,  at  the  place  of  destination. 
E.  S.  1887,  p.  73;  S.  &  C.,  p.  165;  Cothran,  p.  31.     Post  2728— 
2731;  2802-2811. 

107.  DELIVERY  OF  GRAIN  AT  PLACE  DIRECTED — connec- 
tions with  other  roads.     ART.  13,  §  5.     All  railroad  companies 
receiving  and  transporting  grain  in  bulk  or  otherwise,  shall 
deliver  the  same  to  any  consignee  thereof,  or  any  elevator  or 
public  warehouse  to  which  it  may  be  consigned,  provided 


AND  EMINENT  DOMAIN.  13 

such  consignee  or  the  elevator  or  public  warehouse  can  be 
reached  by  any  track  owned,  leased  or  used,  or  which  can  be 
used,  by  such  railroad  companies;  and  all  railroad  companies 
shall  permit  connections  to  be  made  with  their  track,  so  that 
any  such  consignee,  and  any  public  warehouse,  coal  bank  or 
coal  yard,  may  be  reached  by  the  cars  on  said  railroad.  E. 
S.  1887,  p.  73;  S.  &  C.,  p.  165;  Cothran,  p.  31. 

108.  The  words  "  can  be  reached  "  do  not.  mean  reached  by  physi- 
cal possibility,  but  by  a  track  which  the  company  has  a  right  to  use. 
If  the  place  of  consignment  can  be  reached  by  any  track  of  which  the 
railway  company  is  owner  or  lessee,  or  which  can  be  lawfully  used  by 
it,  the  company  is  bound  to  deliver  at  that  place.    C.  B.  &  Q.  R.  R.  v. 
Hoyt,  1  Bradw.  374,  386. 

109.  This  section  does  not  require  a  railway  company  to  do  any 
act  it  has  no  right  to  do:  e.  g.,  to  use  another  company's  track  without 
license.    Hoyt  v.  C.  B.  &  Q.  R.  R.,  93  111.  601. 

110.  It  seems  that  the  last  clause  of  the  above  section,  requiring 
all  railroad  companies  to  permit  connections  to  be  made  with  their 
track,  so  that  any  public  warehouse  may  be  reached  by  the  cars  on 
such  railroad,  changes  the  rule  announced  in  People  ex  rel.  v.  C  &  A. 
R.  R.,  55  111.  95;  Vincent  v.  C.  &  A.  R.  R.,  49  111.  33;  People  ex  rel.  v. 
C.  &  N.  W.  Ry.,  57  111.  436;  C.  B.  &  Q.  R.  R.  v.  Hoyt,  1  Bradw.  387; 
Hoyt  v.  C.  B.  &  Q.  R.  R.,  93  111.  611. 

111.  FRAUDULENT  WAREHOUSE  RECEIPTS — passage  of  laws 
to  enforce  provisions  of  Art.  13 — rule  of  construction.     ART. 
13,  §  6.     It  shall  be  the  duty  of  the  general  assembly  to 
pass  all  necessary   laws  to  prevent  the   issue  of  false  and 
fraudulent  warehouse  receipts,  and  to  give  full  effect  to  this 
article  of  the  constitution,  which  shall  be  liberally  CQnstrued 
so  as  to  protect  producers  and  shippers.     And  the  enumera- 
tion of  the  remedies  herein  named  shall  not  be  construed  to 
deny  to  the  general  assembly  the  power  to  prescribe  by  law 
such  other  and  further  remedies  as  may  be  found  expedient, 
or  to  deprive  any  person  of  existing  common  law  remedies. 
B.  S.  1887,  p.  73;  S.  &  0.,  p.  166;  Cothran,  p.  31. 

112.  INSPECTION  OF  GRAIN — laws  to  regulate.    ART.  13, 
§  7.     The  general  assembly  shall  pass  laws  for  the  inspection 
of  grain,  for  the  protection  of  producers,  shippers  and  receiv- 
ers of  grain  and  produce.     R  S.  1887,  p.  73;  S.  &  C.,  p.  166; 
Cothran,  p.  31. 

113.  It  was  competent  to  delegate  to  the  railroad  and  warehouse 
commission  the  power  to  control  the  subject  of  the  inspection  of 
grain,  and  the  law  of  this  state  on  that  subject  is  a  valid  law.    People 
v.  Harper,  91  111.  357.    See  post  2756-2763,  2770-2774,  2796-2801. 


14  KAILROADS,  WAREHOUSES. 

CHAPTER  22. 

CHANCERY. 

114.  PRIVATE  CORPORATIONS — discovery  by.  §22.  When  a 
corporation,  other  than  a  municipal  corporation,  is  defendant 
to  a  bill  or  petition  praying  discovery  of  any  paper  or  matter 
alleged  to  be  in  the  custody  or  within  the  knowledge  of  any 
officer  or  agent  of  the  defendant,  it  shall  not  be  necessary,  for 
the  purpose  of  procuring  such  discovery,  to  make  such  officer 
or  agent  a  defendant,  but  the  answer  touching  the  paper  or 
matter  concerning  which  discovery  is  sought,  shall  be  under 
the  oath  of  such  officer  or  agent  the  same  as  if  he  had  been 
made  defendant;  provided,  no  corporation  shall  be  required 
to  procure  such  answer  under  the  oath  of   any  person  not 
under  its  control  at  the  time  when  the  bill  is  filed.     R.  S. 
1887,  p.  216,  §  22;  S.   &  C.,  p.  404,  §  22;  Cothran,  p.  188, 
§  22.     In  force  July  1,  1872.     Laws  1871-2,  p.  333.     This  is 
a  new  section,  not  in  the  prior  laws. 

115.  ANSWER  OF  CORPORATION — before  this  statute.    The  answer 
of  a  corporation  aggregate  should  be  under  seal,  but  not  under  oath. 
Before  this  enactment,  if  a  sworn  answer  was  desired,  some  managing 
officer  who  could  answer  under  oath  was  required  to  be  made  a  party. 
Fulton  Co.  v.  M.  &  W.  R.  R.,  21  111.  338,  364. 

116.  BILL — charge  on  information  and  belief.    Where  the  matter 
essential  to  relief  is  charged  to  rest  in  the  knowledge  of  the  defendant, 
or  must  of  necessity  be  within  the  knowledge  of  the  defendant,  and  is 
a  part  of  the  discovery  sought,  it  may  be  stated  upon  the  information 
and  belief  of  the  complainant.    Campbell  v.  P.  &  D.  R.  R.,  71  111.  611. 


CHAPTER  24. 

CITIES  VILLAGES  AND  TOWNS. 

An  act  to  provide  for  the  incorporation  of  cities  and  villages,  approved  April  10, 
1872;  in  force  July  1,  1872;  laws  1871-2,  p.  218. 

117.  POWERS  OF  CITY  COUNCIL — location,  grade  and  cross- 
ing of  railroads.     ART.  5.  §  1.     The  city  council  in  cities, 
and   president  and  the  board  of   trustees  in  villages,   shall 
have  the  following  powers:         *         *         *         * 

Twenty-fifth — To  provide  for  and  change  the  location,  grade 
and  crossings  of  any  railroad.  R.  S.  1887,  p.  247;  S.  &  C.,  p. 
465;  Cothran,  p.  227.  See  post  1235-1303,  2089-2097. 

118.  RAILWAY  TRACK    IN  CITY — consent  of  council  i>  !•<•>. ^i />•>/. 
The  power  conferred  upon  a  railway  company  to  select  its  own  route 
and  fix  its  terminal  points,  is  subject  to  a  proviso  affecting  its  right  to 
construct  its  road  upon  or  across  any  street  in  any  incorporated  city 
without  the  assent  of  such  city.    This  proviso  is  a  limitation  of  power, 
and  is  an  exclusion  of  such  railroad  from  incorporated  cities,  except 
upon  compliance  with  its  conditions.    Before  such  railroad  can  con- 


AND  EMINENT  DOMAIN.  15 

struct  its  track  in  or  through  an  incorporated  city  it  must  first  obtain 
the  consent  of  the  common  council  acting  in  a  legal  manner.  Hlckey 
v.  Ch.  &  W.  Ind.  R.  R.,  6  Bradw.  172. 

119.  SAME — consent,  how  obtained.    Inasmuch  as  the  railroad  act 
contains  no  provision  as  to  how  such  consent  may  be  obtained,  the 
action  of  the  city  council  must  be  governed  by  the  provisions  of  the 
general  statute  relating  to  the  incorporation  of  cities  and  villages.   Ib. 

120.  POWER  OF  CITY— to  regulate  railroads.     Cities  have  full 
power  to  regulate  the  location  and  use  of  railroad  tracks  within  their 
corporate  limits.    This  is  a  public  power  or  trust  and  can  be  exercised 
by  the  corporation  when  and  in  such  manner  as  it  shall  judge  best, 
but  such  power  cannot  be  delegated  to  others.    Ib. 

121 .  ORDINANCE  GIVING  RIGHT— certainty  infixing  location,  &c. 
In  giving  consent  to  a  railway  company  to  locate  its  track  upon  or 
over  the  streets,  the  council  must  prescribe  the  location  of  such  road 
with  reasonably  definite  lines;  and  if  it  fails  to  do  so,  but  delegates  to 
the  railway  company  itself  a  discretion  in  that  respect,  the  ordinance 
will  be  void.    Ib. 

122 .  An  ordinance  granting  permission  to  "construct,  &c.,  one  or 
more  tracks    *    *    *    commencing  at  the  southern  boundary  line  of 
the  city  of  Chicago,  at  some  point  within  100  feet  of  the  west  line  of 
Stewart  Avenue,  and  thence  northwardly    *    *    *    parallel  to  said 
avenue  to  its  intersection  with  Grove  street,  thence    *    *    *    to  such 
terminus   as  it  may  establish  between  the  east  bank  of  the  south 
branch  of  the  Chicago  river,  and  the  west  side  of  State  street,  and 
between  Sixteenth  street  and  the  south  line  of  Van  Buren  street,"  is 
void  for  indefiniteness.    Ib. 

123 .  DELEGATION  OF  AUTHORITY.    The  ordinance  further  pro- 
vided that  the  company  might  permit  other  railroad  companies  to  use 
the  said  railroad  track  "upon  such  terms  as  may  be  agreed  upon  by 
said  companies."    This  delegation  of  power  rendered  the  ordinance 
void,  because  its  exercise  would  result  in  a  deprivation  of  the  city  of 
the  control  and  regulation  of  a  portion  of  its  streets.    Ib. 

124.  INJUNCTION.    A  railroad  company  having  no  power  to  con- 
struct its  track  in  a  city  except  by  consent  of  the  city  council,  if  such 
consent  is  void,  a  court  of  equity  will  have  jurisdiction  to  restrain,  by 
injunction,  the  company  from  exercising  such  power.    Ib. 

125  POWER  OF  CITY—  to  grant  right  for  railroad  in  a  street.  A 
city  has  the  power  to  authorize  the  laying  of  railroad  tracks  in  its 
streets;  and  where  a  city  under  a  resolution  adopted,  conveys  a  street 
absolutely  to  a  railway  company,  the  resolution  and  deed  will  give  the 
company  the  right  to  construct,  maintain  and  operate  its  tracks  upon 
the  street,  and  when  such  right  is  exercised,  the  city  cannot  resume 
the  grant  to  the  exclusion  of  the  company.  Ouincy  v.  C.  B.  &  Q.R. 
R.,  W  111.  21. 

126.  The  recognition  by  a  city  for  over  twenty  years  of  a  resolu- 
tion granting  a  right  to  lay  railroad  tracks  in  certain  streets  as  being 
in  force,  and  its  acquiescence  thereunder,  affords  presumptive  evi- 
dence of  its  due  publication.    Ib. 

127.  MODE  OF  GRANTING  RIGHT.    Although  a  city  charter  may 
provide  that  the  city  council  shall  have  power  to  make  all  ordinances 
necessary  and  proper  for  carrying  into  execution  the  powers  specified 
in  the  charter,  the  action  of  the  city  council,  though  in  the  form  of  a 
resolution,  in  connection  with  its  deed  granting  the  use  of  streets  for 
railroad  tracks,  will  be  a  sufficient  grant  of  permission  to  so  vise  the 
streets.    Ib. 

128.  EIGHT  TO  FIX  ROUTE— consent  as  to  streets.     Under  the 
general  law  a  railway  company  has  authority  to  select  its  own  route. 


16  KAILEOADS,  WAREHOUSES, 

to  lay  out  its  road  and  to  construct  the  same;  and  this  power,  by 
necessary  implication,  carries  with  it  the  power  of  fixing  the  terminal 
points  of  the  road,  subject  only  to  the  limitation  that  the  construction 
of  its  road  upon  or  across  any  street  in  any  city,  must  be  with  the 
assent  of  the  city  couacil.  Ch.  &  W.  Ind.  R.  R.  v.  Dunbar,  100  111.  110. 

129.  The  lines  selected  may,  without  the  assent  of  the  city,  cross 
streets,  and  the  company  may,  without  such  assent,  acquire  the  right 
of  way,  and  construct  its  road  on  every  part  of  such  line,  except  the 
parts  upon  or  across  the  streets.    Ib. 

130.  Under  the  present  legislation,  it  is  not  necessary  as  a  condi- 
tion precedent  to  the  location  of  a  railroad  within  a  city,  or  to  its  con- 
struction within  the  city,  or  such  parts  of  its  lines  as  are  not  within 
any  street,  or  to  the  power  to  condemn  private  property  within  the 
city,  that  any  ordinance  should  be  passed  by  the  city  council,  either 
giving  assent  for  the  construction  of  the  road  upon  or  across  streets, 
or  providing  for  the  location  of  the  road.    Ib. 

131 .  ORDINANCE — aujfftciencg  of— certainty.    An  ordinance  grant- 
ing permission  to  construct  and  operate  a  railroad  within  the  city 
limits,  is  not  void  because  it  fails  to  designate  the  precise  point  at 
which  the  road  may  be  constructed  upon  and  across  the  streets  to  be 
intersected  by  it.    Ib. 

132 .  DELEGATION  OF  POWER.    Permission  granted  by  a  city  coun- 
cil to  a  railway  company  to  construct  its  road  across  streets  at  any 
point  to  be  selected  by  the  company  within  a  given  district,  is  not  a 
delegation  to  the  company  of  powers  which  can  only  be  exercised  by 
the  council,  as  the  power  to  locate  the  line  of  the  road  is  given  by 
statute  to  the  company  alone,  and  not  to  the  city  authorities.    The 
city  of , Chicago  has  power  to  make  provision  for  the  location  of  a 
railroad  within  its  limits,  but  no  power  to  locate.    That  power  is  in 
the  railway  company,  subject  to  such  provisions  for  the  location  as 
the  city  council  may  make.    76. 

133 .  The  mere  existence  of  a  power  in  a  city  council  "to  provide 
for  the  location,  grade  and  crossings"  of  railroads  within  the  city,  and 
"to  change  the  location,  grade  and  crossings"  of  railroads,  until  exer- 
cised, is  no  limitation  upon  the  power  of  the  railroad  company  to 
select  its  route  and  locate  its  road  within  the  city.    Ib. 

134.  USE  BY  OTHER  COMPANIES.    A  provision  in  an  ordinance 
that  the  permission  to  construct  a  railroad  within  the  city,  is  upon  the 
condition  that  the  railway  company  shall  permit  any  other  railroad 
companies,  not  exceeding  two  in  number,  which  have  not  then  the 
right  of  entrance  into  the  city,  to  use  the  main  track  of  the  road, 
therein  authorized  to  be  laid,  jointly  with  such  road  so  authorized, 
does  not  render  the  ordinance  invalid,  as  it  confers  upon  the  railroad 
company  no  power  not  given  it  by  law,  nor  does  it  deprive  the  city  of 
any  power  whatever.    Ib. 

135.  An  ordinance  giving  a  railroad  company  license  to  construct 
its  track  along  or  across  the  streets  and  alleys  of  a  city,  upon  the  con- 
dition that  it  shall  permit  any  other  companies,  not  exceeding  two  in 
number,  to  use  its  main  track  upon  such  fair  and  equitable  terms  as 
may  be  agreed  upon,  will  not  be  construed  as  prohibiting  the  company 
from  leasing  the  use  of  its  track  within  the  city  to  more  than  two 
other  companies.    Such  provision  is  a  limitation,  not  upon  the  right 
of  the  company  to  admit  other  companies  to  a  joint  use  of  its  track, 
but  upon  the  exclusive  enjoyment  of  the  estate  granted  by  the  city. 
Chicago  v.  Ch.  &  W.  Ind.  It.  R.,  105  111.  73. 

136.  Under  the  9th  and  25th  clauses  of  §  1,  Art.  5,  of  the  general 
incorporation  law,  the  common  council  of  cities  incorporated  under 
that  law,  is  vested  with  the  exclusive  control  and  regulation  of  the 


AND  EMINENT  DOMAIN.  17 

streets  of  their  cities,  and  with  the  power  to  direct  and  control  the 
location  of  railroad  tracks  within  the  limits  of  their  cities;  and  being 
inconsistent  with  the  9th  clause  of  §  1,  Art.  5,  of  the  amended  charter 
of  the  city  of  Chicago,  adopted  in  1867,  must  prevail  over  the  latter. 
Chicago  Dock  &  Canal  Co.  v.  Garrity,  115  111.  155. 

187.  A  city  council  may  grant  to  private  individuals  or  to  a  private 
corporation,  the  right  to  lay  railroad  tracks  in  the  streets  connecting 
with  public  railway  tracks  previously  laid,  and  extending  to  the  man- 
ufacturing establishments  or  warehouses  of  those  laying  the  tracks. 
They  then  oecome  part  of  the  railway  with  which  they  connect,  and 
are  subject  to  public  use  and  control,  as  other  railway  tracks.  76. 

138.  The  only  authority  that  can  call  in  question  the  right  of  a 
railway  company  to  construct  its  track  along  or  across  a  street  or 
highway  in  an  incorporated  city  or  village,  is  such  city  or  village.    The 
county  authorities  cannot  even  question  the  validity  of  an  ordinance 
of  a  city  or  village  for  the  construction  of  a  railroad  within  such  city 
or  village.    Cook  Co.  v.  Great  Western  R.  R.,  119,  111.  218. 

139.  GRANT  OF  USE  OF  STREET  CONSTRUED.    An  ordinance  or 
resolution  of  a  city  appropriated  certain  streets  to  a  railway  company, 
"  so  far  as  said  company  may  require  to  appropriate  them  in  crossing 
them  in  the  construction  of  their  railroad  tracks,  switches,  turnouts, 
&c.,  and  other  machinery  and  fixtures  to  be  used  or  employed  by  them 
in  operating  their  said  road,  subject,  however,  to  this  proviso:  that 
the  same  shall  be  occupied  with  as  little  detriment  and  inconvenience 
as  possible,"  and  requiring  the  crossings  to  be  so  graded  as  to  make 
the  embankments  no  obstruction:  Held  that  this  was  but  a  provision 
for  a  joint  use  with  the  public  having  occasion  to  use  the  streets  by 
other  modes  of  travel.    St.  L.  A.  &  T.  H.  R.  R.  v.  Belleville,  —  111.  — . 
Filed  June,  1887. 

140.  VACATION— of  the  vote  required,  &c.    A  public  street  or  alley 
can  be  vacated  or  closed  only  by  the  city  council,  and  by  it  only  upon 
a  three-fourths  majority  vote  of  all  the  aldermen  authorized  by  law  to 
be  elected,  to  be  taken  by  ayes  and  noes  and  entered  upon  the  record 
of  the  proceedings  of  the  council  or  board.    Ib. 

141.  PUBLIC  BOUND  BY  LAWFUL  GRANT.    A  city  has  the  power  to 
allow  the  construction  of  a  railroad  upon  or  over  its  streets,  and  the 
public  will  be  bound  by  whatever  may  be  lawfully  done  in  regard  to 
the  streets  by  the  city.    Ch.  &  N.  W.  JR.  R.  v.  People,  91  111.  251. 

142.  NUISANCE.    A  railroad  track  laid  upon  a  street  of  a  city  by 
authority  of  law,  properly  constructed  and  operated  in  a  careful  and 
skillful  manner,  is  not  in  law  a  nuisance.    Ch.  &  E.  III.  R.  R.,  v.  Loeb, 
118111.203. 

143  CONDITIONS — binding  as  a  contract.  When  leave  is  given  to 
lay  a  railroad  track  in  a  street  on  conditions  which  are  accepted,  this 
will  constitute  a  contract  binding  upon  the  city  which  it  may  not  dis- 
regard, by  imposing  further  conditions  and  burdens.  People  v.  W 
Div.Ry.,  118111.  113. 

144.  POWER  OF  CITY — to  compel  fencing  of  railroad 
track.  Twenty-sixth.  To  require  railroad  companies  to  fence 
their  respective  railroads,  or  any  portion  of  the  same,  and  to 
construct  cattle  guards,  crossings  of  streets  and  public  roads, 
and  keep  the  same  in  repair,  within  the  limits  of  the  corpo- 
ration. In  case  any  railroad  company  shall  fail  to  comply 
with  any  such  ordinance,  it  shall  be  liable  for  all  damages 
the  owner  of  any  cattle  or  horses  or  other  domestic  animal, 

—3 


18  KAILROADS,  WAREHOUSES, 

may  sustain,  by  reason  of  injuries  thereto  while  on  the  track 
of  such  railroad,  in  like  manner  and  extent  as  under  the  gen- 
eral laws  of  this  state,  relative  to  the  fencing  of  railroads; 
and  actions  to  recover  such  damages  may  be  instituted  before 
any  justice  of  the  peace  or  other  court  of  competent  jurisdic- 
tion. [R.  S.  1887,  p.  247;  S.  &  C.  465;  Cothran,  227.  See 
post  1518-1799.] 

1 4: 5.  POWERS  OF  CITY — railway  flagmen — grade  of  track — 
ditches.  Twenty-seventh.  To  require  railroad  companies  to 
keep  flagmen  at  railroad  crossings  of  streets,  and  provide 
protection  against  injury  to  person's  and  property  in  the  use 
of  such  railroads.  To  compel  such  railroads  to  raise  or  lower 
their  railroad  tracks  to  conform  to  any  grade  which  may  at 
any  time  be  established  by  such  city,  and  where  such  tracks 
run  lengthwise  of  any  such  street,  alley  or  highway,  to  keep 
their  railroad  tracks  on  a  level  with  the  street  surface,  and  so 
that  such  tracks  may  be  crossed  at  any  place  on  such  street, 
alley  or  highway.  To  compel  and  require  railroad  compa- 
nies to  make  and  keep  open  and  to  keep  in  repair,  ditches, 
drains,  sewers  and  culverts  along  and  under  their  railroad 
tracks,  so  that  filthy  or  stagnant  pools  of  water  cannot 
stand  on  their  grounds  or  right  of  way,  and  so  that  the  natu- 
ral drainage  of  adjacent  property  shall  not  be  impeded.  [R. 
S.  1887,  p.  247;  8.  &  C.,  p.  465;  Cothran,  p.  228.  See  post 
2450-2455.] 

146.  DUTY  TO  KEEP  FLAGMAN — liability  for  neglect  to  do  so. 
See  /M.  L.  V.  &  T.  H.  R.  R.,  v.  Dunn,  78  111.  197;  /.  C.  R.  R.  v.  Ebert, 
74  111.  399;  P.  &  P.  U.  Ry.  v.  Claybera,  107  111.  644;  L.  S.  &M.  8.  R.  R. 
v.  Sunderland,  2  Bradw.  307;  L.  tf.  &  M.  S.  R,  R.  v  Kaste,  11  Bradw. 
536. 

147.  KEGULATION  OF  USE  OF  STREETS.    The  act  of  1872,  relating 
to  cities  and  villages,  confers  upon  them  full  authority  to  regulate  the 
use  of  streets,  to  provide  for  and  change  the  location,  grade  and  cross- 
ings of  railroads,  to  require  railway  companies  to  fence  their  roads,  to 
construct  cattle-guards  and  crossings  of  streets,  to  keep  the  same  in 
repair,  to  maintain  flagmen  at  such  crossings,  to  compel  the  roads  to 
raise  or  lower  their  tracks,  &c.    This  invests  incorporated  cities  and 
villages  with  exclusive  authority  over  the  matter  of  railroad  crossings 
of  streets  and  highways  within  their  limits,  and  excludes  the  jurisdic- 
tion of  the  county  or  town  authorities.    Cook  Co.  v.  Great  Western 
R.  R.t  119  111.  218. 

148.  ALLOWING  ICE  ALONG  TRACKS.    A  railway  company  not 
being  required  by  law  to  keep  the  excavations  along  the  sides  of  its 
track  free  from  water  and  ice,  it  will  not  be  liable  for  stock  killed 
in  consequence  of  ice  therein,  so  as  to  prevent  escape  from  the  track, 
over  the  same.    P.  &  R.  Q.  Ry.  v.  McClenalian,  74  111.  435. 

149.  LIABILITY  OF  RAILWAY — to   make  safe  crossing  for  new 
street.    Long  after  the  construction  of  a  railroad,  a  street  was  extended 
so  as  to  cross  the  same,  and  the  city  passed  an  ordinance  requiring  the 
company  to  make  a  safe  and  proper  crossing  by  grading  the  approaches 
of  the  street  at  the  crossing,  there  being  nothing  in  the  charter  of  the 
company  imposing  such  duty,  or  any  such  duty  imposed  by  any  gen- 


AND  EMINENT  DOMAIN.  19 

eral  law  in  force  at  the  time  the  company  was  created:  Held,  that  the 
ordinance  was  void,  and  that  the  legislature  itself  could  not  impose 
this  new  burden  without  making  compensation.  /.  C.  R.  R.  v.  Bloom- 
ington,  76  111.  447. 

150.  POWEES   OF    CITY — extending   streets    across   rail- 
road.    Eighty-ninth.     The  city  council  shall  have  power  by 
condemnation  or   otherwise,   to  extend  any   street,  alley  or 
highway  over  or  across,  or  to  construct  any  sewer  under  or 
through  any  railroad  track,  right  of  way,  or  land  of  any  rail- 
road company   (within  the  corporate  limits);  but  where  no 
compensation  is  made  to  such  railroad  company,  the  city  shall 
restore  such  railroad  track,  right  of  way  or  land  to  its  former 
state,  or  in  a  sufficient  manner  not  to  have  impaired  its  use- 
fulness.    [E.  S.  1887,  p.  250;  S.  &  C.,  p.  472;  Cothran,  p.  232.  J 

151.  USE  OF  STREET  BY  RAILWAY — petition  of  lot  owners 
necessary.     Ninetieth.     The  city  council  or  board  of  trustees 
shall  have  no  power  to  grant  the  use  of,  or  the  right  to  lay 
down,  any  railroad  track,  in  any  street  of  the  city,  to  any 
steam  or  horse  railroad  company,  except  upon  a  petition  of 
the  owners  of  the  land  representing  more  than  one-half  of 
the  frontage  of  the  street,  or  so  much  thereof  as  is  sought  to 
be  used  for  railroad  purposes.     [K.  S.  1887,  p.  250;  S.  &  C., 
p.  472;  Cothran,  p.   232.     See  Horse  &  Dummy  Eailroads, 
Chap.  66,  §  3,  and  Bailroads  &  Warehouses,  Chap.  114.     See 
post  1235-1303.] 

152.  A  compliance  with  this  condition  is  an  essential  prerequisite 
to  a  valid  execution  of  the  power.    Hickey  v.  Ch.  &  W.  Ind.  R.  R.,  6 
Bradw.  172. 

153.  PETITION.    A  petition  to  the  common  council  for  the  right 
to  construct  a  railroad  track  along  a  public  street,  is  sufficient,  if  pre- 
sented by  owners  representing  more  than  one-half  of  the  frontage  of 
so  much  of  the  street  as  is  sought  to  be  used  for  railroad  purposes. 
Schuchert  v.  W.  C.  &  W.  R.  R.,  10  Bradw.  397. 

154.  COMPANY  TAKES — subject  to  damages.    When  an  incorpo- 
rated city,  by  proper  ordinance,  authorizes  a  railroad  company  to  con- 
struct and  operate  a  railroad  in  a  street,  the  company  acquires  the 
right  to  build  and  operate  such  road  without  interference  by  the  public 
or  individuals,  subject  however  to  the  liability  to  respond  to  the 
owners  of  land  abutting  on  the  street,  for  such  injuries  sustained  by 
them  in  consequence  thereof  as  are  to  be  deemed  legal  elements  of 
damages.    Ch.  &  W.  Ind.  R.  R.  v.  Berg,  10  Bradw.  607. 

155.  HORSE  AND  DUMMY  RAILROAD.    The  provisions  of  subdivis- 
ion 90,  §  1,  Art.  5,  of  the  act  relating  to  cities  and  villages,  so  far  as 
they  apply  to  horse  and  dummy  railroads  incorporated  under  the  gen- 
eral law,  are  repealed  by  the  act  of  1874  in  relation  to  horse  and  dummy 
railroads,  and  under  that  act,  no  petition  of  the  adjoining  property 
owners  is  necessary.    Hunt  v.  Ch.  &  Dummy  Ry.,  20  Bradw.  282. 

156.  The  provision  requiring  a  petition  of  property  holders,  has 
reference  only  to  cases  where  the  city  may  propose  to  grant  the  priv- 
ilege to  a  railroad  company  to  run  along  a  street  for  a  given  distance, 
and  not  to  a  case  where  the  road  merely  crosses  the  street.    Ch.  &  W. 
Ind.  R.  R.  v.  Dunbar,  100  111.  110. 


20  RAILROADS,  WAREHOUSES, 

157.  USE  OF  TRACK  FOR  FREIGHT  CARS.    When  a  railway  com- 
pany lays  its  track  in  a  street  of  a  city,  having  the  right  to  construct 
a  track  for  passenger  cars  only,  the  city,  under  §  62,  clause  90,  of  arti- 
cle 5  of  the  general  law,  has  no  power  afterwards  to  grant  the  use  of 
the  track  for  the  operation  of  freight  cars  upon  it,  except  upon  a  peti- 
tion of  property  owners  upon  the  street,  as  required  by  the  statute, 
and  a  grant  of  the  use  of  such  track  for  freight  purposes  without  any 
petition,  being  void,  such  use  is  unlawful  and  a  public  nuisance, 
which  the  state  may  cause  to  be  abated.    McCartney  v.  C.  &  E.  R.  R., 
112  111.  611. 

158.  Clause  90  of  §  1,  Art.  5,  of  the  general  incorporation  law,  is  to 
be  construed  as  inchiding  both  corporations  and  individuals.    The 
word  "  company,"  in  the  clause  must  be  held  to  embrace  natural  per- 
sons as  well  as  corporations.    Ch.  Dock  &  Canal  Co.  v.  Garrity,  115 
111.  155. 

159.  CONDITIONS  TO  PETITION— binding  on  city.    The  property 
owners  in  their  petition  for  license  to  a  railway  company  to  construct 
its  road  in  a  street,  may  insert  such  conditions  in  their  assent  as  they 
may  see  fit,  and  in  such  case  the  city  council  may  not  grant  the  right 
except  upon  those  conditions.    People  v.  West  Div.  Ry.,  118  111.  113. 

160.  WHEN  ASSENT  OF  PROPERTY  HOLDERS  NECESSARY.    Under 
the  general  railroad  law,  it  is  only  necessary  to  procure  the  assent  of 
the  municipal  authorities,  to  authorize  the  laying  of  a  railroad  track 
over  or  along  a  street.    The  act  as  revised  in  1874,  does  not  require  the 
assent  of  the  abutting  lot  owners,  and  in  the  absence  of  any  special 
statutory  provisions  requiring  such  assent,  it  will  not  be  necessary. 
Wiggins  Ferry  Co.  v.  E.  St.  L.  U.  Ry.,  107  111.  450. 

161.  In  cities  and  villages  organized  under  the  general  incorpora- 
tion act,  or  under  special  charters,  requiring  the  assent  of  lot  owners, 
this  rule  does  not  apply,  and  the  assent  of  the  requisite  number  of 
abutting  lot  owners,  will  be  required,  as  well  as  that  of  the  munici- 
pality.   Not  so,  however,  in  a  city  under  a  special  charter  containing 
no  such  provision.    Ib. 


CHAPTER  27. 

An  act  to  fix  the  liability  of  common  carriers  receiving  property  for  transportation, 
approved  March  27, 1874 ;  in  force  July  1,  1874. 

162.  COMMON  CARRIERS — limitation  of  common  law  lia- 
bility. §  1.  Be  it  enacted  by  the  People  of  the  State  of 
Illinois,  represented  in  the  General  Assembly:  That  when- 
ever any  property  is  received  by  a  common  carrier,  to  be 
transported  from  one  place  to  another,  within  or  without  this 
state,  it  shall  not  be  lawful  for  such  carrier  to  limit  his  com- 
mon law  liability  safely  to  deliver  such  property  at  the  place 
to  which  the  same  is  to  be  transported,  by  any  stipulation  or 
limitation  expressed  in  the  receipt  given  for  such  property. 
[R.  S.  1887,  p.  316;  S.  &  C.,  p.  562;  Cothran,  p.  301.  This 
act  is  substantially  re-enacted  as  to  railroad  corporations  in 
the  railroad  and  warehouse  act.  See  §  33  of  the  act  entitled 
"An  act  in  relation  to  the  fencing  and  operating  railroads," 
approved  March  31,  1874;  in  force  July  1,  1874,  and  notes 
thereto.  See  post  2339-2442.  ] 


AND  EMINENT  DOMAIN.  21 


CRIMINAL  CODE,  CHAPTER  38,  DIVISION  1. 

163.  CANADA  THISTLES — bringing  into  state — allowing  to 
seed.  §  40.  Whoever  shall  bring  into  this  state,  whether  in 
the  packing  of  goods,  or  in  grain  or  grass  seed,  or  otherwise, 
any  seed  of  the  Canada  thistle,  and  permit  the  same  to  be 
disseminated  so  as  to  vegetate  on  any  land  in  this  state,  and 
whoever  shall  permit  any  Canada  thistle  to  mature  its  seed 
on  any  land  owned  or  occupied  by  him,  so  that  the  same  is  or 
may  be  disseminated,  shall  be  fined  not  less  than  $10  nor 
more  than  $100;  the  fine  to  be  paid  to  the  commissioners  of 
Canada  thistles,  if  any  is  appointed  in  the  town,  precinct,  city 
or  village,  or  otherwise  as  directed  by  law.  [Laws  of  1867,  p. 
79,  §§  1,  2,  re-written  with  penalties  altered.  E.  S.  1887,  p. 
435;  S.  &  0.  p.  765;  Cothran,  p.  448.] 

164.  Quere  whether  this  is  not  an  attempt  to  regulate  inter-state 
commerce.    See  Animals,  R.  S.  1887,  Chap.  8,  p.  140;  8.  &  C.,  p.  279; 
Cothran,  p.  104. 

165.  CANADA  THISTLES — railroads  to  destroy.     §41.     If 
any   company,  association  or  person  owning,  controlling  or 
operating  a  railroad  shall  refuse  or  neglect  to  dig  up  and  dis- 
troy,  or  take  other  certain  means  of  exterminating  Canada 
thistles  and  other   noxious  weeds  that  may  at  any  time  be 
growing  upon  the  right  of  way  or  other  lands  of  such  roads, 
or  appertaining  thereto,  they  shall  be  fined  for  each  offense 
not  less  than  $50  nor  more  than  $200;  the  fine  to  be  paid  as 
in  the  preceding  section.    [In  lieu  of  L.  1869,  p.  326,  §§  1,  2; 
E.  S.  1887,  p.  436;  S.  &  C.,  p.  765;  Cothran,  p.  448.]  " 

166.  COMMON  CAEEIERS — liability  for  gross  negligence. 
§  49.     Whoever,  having  personal  management  or  control  of 
or  over  any  steamboat,  or  other  public  conveyance  used  for 
the  common  carriage  of  persons,  is  guilty  of  gross  careless- 
ness or  neglect  in,  or  in  relation  to,  the  conduct,  management 
or  control  of  such  steamboat,   or  other   public  conveyance, 
while  being  so  used,  for  the  common   carriage  of  persons, 
whereby  the  safety  of  any  person  shall  be  endangered,  shall 
be  imprisoned  in  the  penitentiary  not  exceeding  three  years, 
or  fined  not  exceeding  $5,000.    [E.  S.  1887,  p.  440;  S.  &  C.,  p. 
768;  Cothran,  p.  451.] 

167.  As  to  criminal  liability  for  negligence,  see  C.  B.  &  Q.  R.  R.  v. 
Triplett,  38  111.  487. 

168.  CRUELTY — by  railroads  to  animals.    §  51.     No  rail- 
road company  or  other  common  carrier  in  the  carrying  or 
transportation  of  any  cattle,  sheep,  swine  or  other  animals, 
shall  allow  the  same  to  be  confined  in   any  car  more  than 
twenty-eight   consecutive   hours    (including  the    time   they 
shall  have  been  upon  any  other  road),  without  unloading  for 


22  KAILBOADS,  WAREHOUSES, 


rest,  water  and  feeding,  for  at  least  five  consecutive  hours, 
unless  delayed  by  storm  or  accident,  when  they  shall  be  so 
fed  and  watered  as  soon  after  the  expiration  of  such  time  as 
may  reasonably  be  done.  When  so  unloaded  they  shall  be 
properly  fed,  watered  and  sheltered  during  such  rest  by  the 
owner,  consignee  or  person  in  custody  thereof,  and  in  case  of 
their  default,  then  by  the  railroad  company  transporting 
them,  at  the  expense  of  said  owner,  consignee  or  person  in 
custody  of  the  same;  and  such  company  shall  have  a  lien 
upon  the  animals  until  the  same  is  paid.  A  violation  of  this 
section  shall  subject  the  offender  to  a  fine  of  not  less  than 
$3  nor  more  than  $200.  [Laws  of  1869,  p.  115,  116,  §§  5,  6,  7, 
re-written;  E.  S.  1887,  p.  440;  S.  &  C.,  p.  769;  Cothran,  p.  451.  ] 

169.  EMBEZZLEMENT — by  officers  and  agents  of  corpo- 
rations.    §  75.     If  any   officer,    agent,  clerk,  or  servant  of 
any  incorporated  company;  or  if  a  clerk,  agent,  servant  or 
apprentice  of  any  person  or  copartnership,  or  society,  embez- 
zles or  fraudulently  converts  to  his  own  use,  or  takes  and 
secretes  with  intent  so  to  do,  without  the  consent  of  his  com- 
pany, employer  or  master,  any  property  of  such  company, 
employer,  master,  or  another,  which  has  come  to  his  posses- 
sion, or  is  under  his  care  by  virtue  of  such  office  or  employ- 
ment, he  shall  be  deemed  guilty  of  larceny.     [In  place  of 
§  70,  E.  S.  1845,  p.  162;  E.  S.  1887,  p.  446;  S.  &  C.,  p.  776; 
Cothran,  p.  457.  ] 

170.  EMBEZZLEMENT — of  railroad  ticket.     §  77.     When- 
ever  any  person  in   the  employ  of  any  railroad   company, 
whether  such  company  is  incorporated  by  this  or  any  other 
state,  shall  fraudulently  neglect  to  cancel  or  return  to  the 
proper  officer,  company  or  agent,  any  coupon  or  other  rail- 
road ticket  or  pass,  with  the  intent  to  permit  the  same  to  be 
used  in  fraud  or  injury  of  any  such  company,  or  if  any  person 
shall  steal  or  embezzle  any  such  coupon  or  other  railroad 
ticket  or  pass,  or  shall  fraudulently  stamp,  or  print,  or  sign 
any  such  ticket,  coupon  or  pass,  or  shall  fraudulently  sell  or 
put  in  circulation  any  such  ticket,  coupon  or  pass,  the  person 
so  offending  shall  be  punished  by  imprisonment  in  the  peni- 
tentiary for  the  term  of  one  year.    [Law  sof  1859,  p.  154,  §  2; 
E.  S.  1887,  p.  447;  S.  &  C.,  p.  777;  Cothran,  p.  457.] 

171.  MALICIOUS  MISCHIEF  TO  RAILROAD — murder  for  caus- 
ing death  by.     §  186.    Whoever  willfully,  and  maliciously,  dis- 
places or  removes,  any  switch,  signal,  or  rail  of  any  railroad, 
or  displaces,  or  removes,  any  signal  or  signal-light,  from  any 
bridge  that  is  built  across  any  navigable  stream  in  this  state, 
or  breaks  down,  rips  up,  injures  or  destroys  any  track,  bridge 
or  other  portion  of  any  railroad,  or  places  obstructions  thereon, 
or  places  any  false  signal  upon  or  along  the  line  of  any  rail- 


AND  EMINENT  DOMAIN.  23 

road  track,  or  upon  any  bridge  built  across  any  navigable 
stream  in  this  state,  or  does  any  act  to  any  engine,  machine 
or  car  of  such  railroad,  with  intent  that  any  person  or  prop- 
erty being  or  passing  on  or  over  such  railroad,  or  over  or 
through,  or  under  such  bridge  built  across  any  navigable 
stream  of  this  state,  should  be  injured  thereby,  shall  be  impris- 
oned in  the  penitentiary  not  less  than  one  year  nor  more  than 
five  years.  Or  if  in  consequence  of  any  such  act  done  with 
such  intent,  any  person  being  or  passing  on  or  over  such  rail- 
road, or  over,  through  or  under  such  biidge,  built  across  any 
navigable  stream  of  this  state,  suffers  any  bodily  harm,  or  any 
property  is  injured,  the  person  so  offending,  shall  be  impris- 
oned in  the  penitentiary  not  less  than  three  nor  more  than 
ten  years,  and  if  in  consequence  of  any  such  act,  done  with 
such  intent,  any  person  is  killed,  the  person  so  offending,  shall 
be  deemed  guilty  of  murder  and  punished  accordingly.  [Laws 
of  1853,  p.  217,  §§  1,  2,  3;  Laws  of  1877,  p.  86,  §  1,  as  amended 
Laws  of  1879,  p.  118;  B.  S.  1887,  p.  464;  S.  &  C.,  p.  805;  Coth- 
ran,  p.  482.  ] 

172.  CONSPIRACY — combination  to  injure  railroad.    §187. 
If  any  two  or  more  persons  shall  conspire  or  combine  to  break 
down,  take  up,  injure  or  destroy  any  railroad  track,  or  rail- 
road bridge,  or  to  burn  or  destroy  any  engine,  engine  house, 
car  house,  machine  shop,  or  any  other  building  or  machinery 
necessary  to  the  free  use  of  any  railroad,  every  such  person 
shall  be  punished  by  imprisonment  in  the  penitentiary  not 
less  than  two  nor  more  than  five  years.    [2d  Laws  of  1861,  p. 
8,  §  1,  re-written;  B.  S.  1887,  p.  465;  S.  &  C.,  p.  806;  Goth- 
ran,  p.  483.] 

173.  MALICIOUS  MISCHIEF — attempt  to  commit  as  to  rail- 
road.    §  189.     Whoever  shall  maliciously  make  any  attempt, 
although  the  same  may  not  succeed,  to  place  obstructions  on 
any  railroad  track,  to  burn,  blow  up  or  destroy  any  railroad 
bridge,  or  in  any  other  way  prevent  the  free  and  safe  passage 
of  trains  on  any  railroad,  shall  be  imprisoned  in  the  peniten- 
tiary not  less  than  one,  nor  more  than  ten  years.     [  2d  Laws 
1861,  p.  8,  §  3,  re- written;  B.  S.  1887,  p.  465;  S.  &  C.,  p.  806, 
§  241;  Cothran,  p.  483,  §  189.] 

174.  MALICIOUS  MISCHIEF — influencing  others  to  injure 
railroad.     §  190.     Whoever  shall  maliciously  hire,  persuade 
or  induce,  attempt  to  hire,  induce  or  persuade  any  person  to 
burn,  or  in  any  way  injure  or  destroy  any  railroad  bridge,  to 
take  up,  injure  or  destroy  any  railroad  track,  or  any  machine 
shop,  engine  house,  car  house,  engine  or  car,  or  other  machin- 
ery or  property  necessary  for  the  operation  of  any  railroad, 
shall  be  imprisoned  in  the  penitentiary  not  less  than  one  nor 
more  than  ten  years.     [2d  Laws  of  1861,  p.  9,  §  4,  re-written, 


24  EAILROADS,  WAREHOUSES, 

and  punishment  increased;  E.  S.  1887,  p.  465,  §  190;  S.  &  C., 
p.  806,  §  242;  Cothran,  p.  483,  §  190.] 

175.  EAILROAD  ENGINEERS,  &c. — willful  injury  to  stock. 
§  191.     Any  engineer  or  person  having  charge  of  and  run- 
ning any  railroad  engine  or  locomotive,  who  shall  willfully  or 
unnecssarily  kill,  wound  or  disfigure  any  horse,  cow,  mule, 
hog,  or  other  useful  animal,  shall,  upon  conviction,  be  fined 
in  a  sum  not  less  than  the  value  of  the  property  so  killed, 
wounded  or  disfigured,  and  confined  in  the  county  jail  for  a 
period  of  not  less  than  ten  days;  and  any  such  engineer  who 
shall  wantonly  or  unnecessarily  blow  the  engine  whistle  so 
as  to  frighten  any  team  shall  be  liable  to  a  fine  of  not  less 
than  $10  nor  more  than  $50.     [  See  act  of  1874  in  relation  to 
fencing  and  operating  railroads.     E.  S.  1887,  p.  1014,  §  6^; 
also  §  203  of  Criminal  Code;  Laws  1845,  p.   179,  §  156;  and 
2d  Laws  of  1861,  p.  9,  §  4;  E.  S.  1887,  p.  465,  §  191;  8.  &  C., 
p.  807,  §  243;  Cothran,  p.  484,  §  191.     Post  2084-2086.] 

176.  MALICIOUS   MISCHIEF — injury  to  baggage.     §  193. 
If  any  baggage  master,  express  agent,  stage  driver,  hackman 
or  any  other  person,  whose  duty  it  is  to  handle,  remove  or 
take  care  of  trunks,  valises,  boxes,  packages  or  parcels,  while 
loading,  transporting,  unloading,  delivering  or  storing  the 
same,  whether  or  not  in  the  employ  of  a  railroad,  steamboat 
or  stage  company,  shall   wantonly  or  recklessly  injure  or 
destroy  the  same,  he  shall  be  fined  not  exceeding  $200.  [E.  S. 
1887,  p.  465,  §  193;  S.  &.  C.,  p.  807,  §  245;  Cothran,  p.  484, 
§  193.    See  act  in  relation  to  fencing  and  operating  railroads, 
E.  S.  1887,  p.  1007,  §  68;  8.  &  C.,  p.  1944,  §  93;  Cothran,  p. 
1115,  §79.] 

177.  EAILWAY  PROPERTY — taking  without  consent.    §242. 
If  any  person  shall  purchase  or  receive  for  sale  from  any 
other  person  any  link,  pin,  bearing,  journal,  or  other  article 
of  iron,  brass  or  other  metal  which  has  been  manufactured 
and  is  used  exclusively  for  railroad  purposes,  and  which  shall 
have  stamped  thereon  the  name  of  some  railroad  company, 
or  the  initial  letter  thereof,  without  the  consent  in  writing  of 
the  president,  general  manager  or  general  superintendent  of 
such  railroad  company,  such  person  shall  be  fined  in  a  sum 
not  less  than  $100  nor  more  than  $500,  and  be  imprisoned  not 
less  than  ten  days  nor  more  than  ninety.     [E.  S.  1887,  p.  474, 
§  242;  S.  &  C.,  p.  820,  §  298;  Cothran,  p.  499,  §  242.  J 

178.  JURISDICTION — offense  on  railroad  car  or  water- 
craft.    §  11.    When  any  offense  is  committed  in  or  upon  any 
railroad  car  passing  over  any  railroad  in  this  state,  or  any 
water-craft  navigating  any  of  the  waters  within  this  state, 
and  it  cannot  readily  be   determined  in  what   county   the 
offense  was  committed,  the  offense  may  be  charged  to  have 


AND  EMINENT  DOMAIN.  25 

been  committed  and  the  offender  tried  in  any  of  the.  counties 
through  or  along  or  into  which  such  railroad  car  or  water- 
craft  may  pass  or  come,  or  can  reasonably  be  determined  to 
have  been  on  or  near  the  day  when  the  offense  was  commit- 
ted. [E.  S.  1887,  p.  494,  sec.  402;  8.  &  C.,  p.  856,*§  462;  Coth- 
ran,  p.  525,  §402.] 

EMINENT  DOMAIN. 

179.  CONSTITUTION  OF  1848.  AET.  13,  §  11.  No  person 
shall,  for  the  same  offense,  be  twice  put  in  jeopardy  of  his 
life  or  limb;  nor  shall  any  man's  property  be  taken  or  applied 
to  public  use  without  the  consent  of  his  representatives  in 
the  general  assembly,  nor  without  just  compensation  being 
made  to  him.  fE.  S.  1887,  p.  50,  §  11;  S.  &  C.,  p.  90,  §  11] 

DECISIONS  UNDER. 

180.  LIMITATION — on  legislature.    The  constitution  is  a  limita- 
tion upon  the  powers  of  the  legislative  department  of  the  govern- 
ment.   Field  v.  People,  2  Scam.  79;  Sawyer  v.  Alton,  3  Scam.  127: 
Prettyman  v.  Supervisors,  etc..  19  111.  406;  Mason  v.  Wait,  4  Scam. 
127;  Edwards  v.  Pope,  3  Scam.  465;  People  v.  Marshall,  I  Gilm.  672; 
People  v.  Reynolds,  5  Gilm.  1;  People  v.  Wilson,  15  111.  388;  Fireman's 
Benevolent  Assoc.v.  Lounsbury,  21  111.  511. 

181.  RAILWAY  COMPANY— right  to  condemn.    Under  the  general 
law  of  1849,  a  railway  company  had  no  right  to  condemn  land  for 
right  of  way  without  a  law  approving  of  the  route  and  termini  of  its 
road.    Gillinwater  v.  M.  &  A.  R.  R.,  13  111.  1. 

182.  COMPENSATION— /or  property  taken  by  contractors.     A  cor- 
poration having  the  right  to  take  materials  for  the  construction  of 
a  public  work  by  making  compensation,  will  be  liable  to  the  owners 
for  property  taken  by  its  contractors,  although  they  were  to  furnish 
all  materials.    Lesher  v.   Wabash  Nav.  Co.,    14   111.  85;   Hinde  v. 
Wabash  Nav.  Co.,  15  111.  72. 

183.  NATURE  or  POWER — limitation,  public  use  and  compensa- 
tion.   The  right  of  eminent  domain  is  an  inherent  sovereign  power  of 
the  state.    The  exercise  of  the  power  is  unlimited,  except  that  it  must 
be  invoked  for  a  public  use,  and  only  when  required  by  public  neces- 
sity, and  that  just  compensation  be  made.    Johnson  v.  J.  &  C.  R.  R., 
23  111.  202. 

184.  COMPENSATION — by  jury  not  necessary.    Not  necessary  that 
the  compensation  be  assessed  by  a  jury.    The  clause  in  the  constitu- 
tion of  1848,  securing  the  right  of  trial  by  jury,  has  no  application  to 
a  proceeding  to  condemn.    2b. 

185  SAME— when  to  be  paid.  When  the  statute  does  not  other- 
wise direct,  if  the  condemnation  price  is  paid  when  demanded  by  suit 
or  otherwise,  the  parties  entering  upon  the  right  of  way  will  not  be 
trespassers  ab  initio.  Ib. 

186.  NOTICE.  Unless  the  act  authorizing  the  condemnation  so 
directs,  a  notice  of  the  intention  to  condemn  need  not  be  given.  76. 

187  EMINENT  DOMAIN — not  applicable  to  municipal  subscrip- 
tions. This  clause  of  the  constitution  of  1848  was  designed  to  regu- 
late the  exercise  of  the  right  of  eminent  domain,  and  in  no  wise 
relates  to  or  affects  the  taxing  power  of  the  state.  It  does  not  prevent 


26  KAILBOADS,  WAREHOUSES. 

the  legislature  from  authorizing  counties  and  cities  to  take  stock  in 
railway  corporations.    Johnson  v.  Stark  Co.,  24  111.  75. 

188.  APPORTIONMENT  OF  TAXES — between  county  and  city.    This 
constitutional  provision  is  not  violated  by  an  amendment  to  a  city 
charter  requiring  an  apportionment  of  county  taxes   between  the 
county  and  a  city.    People  v.  Power,  25  111.  187. 

189.  COMPENSATION — when  to  be  paid.    The  constitution  of  1848 
does  not  require  that  compensation  shall  be  made  before  the  land  is 
taken  and  used.    It  is  sufficient  if  provision  is  made  for  its  payment. 
Shute  v.  Ch.  &  M.  R.  R.,  26  111.  436. 

190.  INJUNCTION — till  compensation  is  paid.    If  the  compensa- 
tion awarded  is  not  paid,  the  company  condemning  may  be  restrained 
by  injunction  from  using  the  right  of  way  until  it  is  paid.    But  non- 
payment will  not  make  the  condemnation  invalid.    Ib. 

191.  POWER — necessity  of  compensation.    The  power  of  eminent 
domain  can  only  be  exercised  by  making  just  compensation;  and  the 
compensation  required  is  a  matter  of  substance  and  not  of   form. 
Chicago  v.  Lamed,  34  111.  203. 

192.  DIVESTITURE  OF  TITLE.    When  a  condemnation  is  effected, 
and  the  damages  are  assessed  and  accepted  by  the  owners,  who  declare 
their  assent  to  the  proceedings,  the  title  thereby  becomes  divested. 
Rees  v.  Chicago,  38  111.  322. 

193.  SPECIAL  ASSESSMENTS.    The  power  to  levy  and  collect  special 
assessments  is  derived  under  the  right  of  eminent  domain,  and  not 
under  the  taxing  power.    Chicago  v.  Lamed,  34  ill.  203. 

194.  SAME — compensation  in  beneflts.    The  just  compensation  for 
special  assessments  may  be  either  in  money  or  in  benefits.    Ib.    See 
also  Chicago  v.  Boer,  41  111.  306. 

195.  PUBLIC  USE— -private  road.    The  legislature  cannot  provide 
for  the  laying  of  a  private  road  over  the  land  of  another  without  his 
consent.    His  right  is  supreme,  except  when  such  laud  is  needed  for 
the  public  use,  and  then  he  must  be  compensated.    Nesbit  v.  Trumbo, 
39  111.  110;  Crear  v.  Crossly,  40  111.  175. 

196.  PARTIAL  TAKING— property  damaged.    This  clause  of  the 
constitution  of  1848  applies  as  well  to  secure  the  payment  for  property 
partially  taken  for  the  use  of  a  street  as  when  wholly  taken  and  con- 
verted into  a  street.    Nemns  v.  Peoria,  41  111.  502,  511. 

197.  INJUNCTION — use  before  payment.     An  attempt  to  open  a 
road  over  improved  land  before  the  owner's  damages  are  adjusted  and 
paid  may  be  restrained  by  a  court  of  equity.    Corns.  Highways  v. 
Durham,  43  111.  86. 

198.  PUBLIC  USE.    To  authorize  the  taking  of   private  property 
under  the  constitution  (1848),  the  use  must  be  such  as  is  public  in  its 
character,  and  not  public  merely  because  called  such.    E.  St.  Louis  v. 
St.  John,  47  111.  463. 

199.  LIMITATIONS.    The  constitution  of  1848  recognized  the  power 
of  the  state  to  take  and  apply  private  property  to  public  use  upon  two 
indispensable  conditions:  First,  that  it  must  be  by  the  consent  of  the 
general  assembly,  manifested  by  a  law  regularly  adopted,  and  secondly, 
that  just  compensation  shall  be  paid  for  the  property  taken.    Ib. 

200.  DELEGATION  OF  POWER.    This  power  is  lodged  alone  in  the 
general  assembly,  and  its  exercise  is  dependent  upon  the  action  of 
that  body  exercised  in  a  proper  case,  or  in  such  a  case  delegated  to  a 
body  capable  of  its  exercise.    Without  legislative  authority  it  cannot 
be  exercised.    Ib. 

201.  PAYMENT — must  precede  occupation— park.    Until  the  dam- 


AND  EMINENT  DOMAIN.  27 

ages  assessed  for  land  condemned  for  a  public  park  are  paid,  it  cannot 
be  occupied  for  the  purposes  intended.    People  v.  Williams,  51  111.  63. 

202.  SAME— provision  for.    The  act  of  February  24, 1869,  in  refer- 
ence to  South  Park  in  Chicago,  provides  the  means  of  making  com- 
pensation for  land  condemned  by  adopting  the  mode  provided  in  the 
act  of  1852,  in  which  ample  provision  is  made  for  payment  of  the  con- 
demnation money.    Ib. 

203.  EMINENT  DOMAIN — not  applicable  to  taxing  power.    The 
doctrine  of  eminent  domain  is  strictly  applicable  only  to  the  condem- 
nation of  property,  and  not  to  the  levy  and  collection  of  a  tax.    Har- 
ward  y.  St.  Glair  &  Monroe  Levee  &  Drainage  Co.,  51  111.  130;  Hessler 
v.  Drainage  Commissioners,  53  111.  105. 

204.  SAME — no  application  to  special  assessments.    An  attempt  to 
give  a  private  corporation  power  to  levy  and  collect  a  tax  upon  lands 
for  supposed  benefits  by  a  drainage  system,  cannot  be  sustained 
under  the  doctrine  of  eminent  domain,  because  the  just  compensation 
required  under  that  right,  must  be  determined  by  some  impartial 
agency.    Harward  v.  St.  C.  &  M.  L.  &  D.  Co.,  51  111.  130;  Hessler  v. 
Drainage  Commissioners,  53  111.  105. 

205.  JUDGMENT— divesting  of  title.    The  final  judgment  of  the 
circuit  court  approving  of  the  report  of  the  commissioners  appointed 
under  petition  under  the  general  law  of  1859,  relating  to  plank,  gravel 
and  McAdainized  roads,  passes  the  title  to  the  lands  condemned,  to  the 
corporation.    Skinner  v.  Lake  View  Avenue  Co.,  57  111.  151. 

206 .  COMPENSATION— fixing,  a  judicial  act.    The  determination 
of  what  is  a  "just  compensation"  for  private  property  taken  for  public 
use,  is  a  judicial  act,  which  can  properly  be  performed  only  by  the 
judicial  department,  and  former  decisions  holding  the  award  of  per- 
sons not  of  the  judicial  department  conclusive,  is  overruled.    Rich  v. 
Chicago,  59  111.  286;  Cook  v.  S.  Park  Commissioners,  61  111.  115. 

207 .  TRIAL  BY  JURY.    An  act  giving  a  city  council  and  board  of 
public  works  power  to  assess  the  damages  on  the  condemnation  of 
land  for  the  widening  of  a  street,  is  not  unconstitutional '  under  the 
constitution  of  1848.    Rich  v.  Chicago,  59  111.  286. 

208.  COMPENSATION— pa?/mm£  necessary  to  complete  condemna- 
tion.   Park  commissioners  can  not  take  and  occupy  land  condemned 
for  a  public  park  until  the  damages  assessed  are  paid  the  owner.    Cook 
v.  South  Park  Commissioners,  61  111.  115;  Ch.  &  Milwaukee  R.  R.  v. 
Hull,  20  111.  218;  Johnson  v.  Joliet  &  Ch.  R.  R.,  23  111.  202;  Shute  v. 
Ch.  &  Milwaukee  R.  R.,  26  111.  436. 

209.  JUDICIAL  PROCEEDING  NECESSARY.    The  right  of  the  state 
to  take  private  property  for  public  use  cannot  be  asserted  by  mere 
enactment.    The  constitution  providing  that  the  citizen  shall  not  be 
deprived  of  property  except  by  due  process  of  law,  or  in  conformity  to 
the  law  of  the  land,  requires  a  trial,  or  judicial  proceeding  and  a  judg- 
ment.   Cook  v.. South  Park  Commissioners,  61  111.  115. 

210.  COMPENSATION— pecuniary.     The   compensation   required 
must  be  pecuniary  in  its  character.     Weckler  v.  Chicago,  61  111.  142. 

211.  JURY  TRIAL— on  appeal.    On  an  appeal  to  the  circuit  court 
from  an  assessment  of  damages  for  a  right  of  way  for  a  railroad,  the 
statute  act  of  1852,  gives  a  trial  by  jury.    T.  P.  &  W.  R.  R.  v.  Darst, 
61  111.  231. 

212 .  CONDEMNATION— before  assessment  and  payment  of  damages. 
Under  constitution  of  1848,  charter  power  authorizing  the  taking  of 
lands  by  condemnation  before  the  ascertainment  or  payment  of  dam- 
ages, was  not  unconstitutional.    Townsend  v.  C.  &  A.  R.  JS.,91  111.  545. 

213.  STATE  ALONE  CAN  CONFER  THE  POWER.    The  right  of  a 


28  RAILROADS,  WAEEHOUSES, 

corporation  to  condemn  is  derived  solely  from  the  state  law,  not  from 
the  consent  of  city  authorities.  Metro.  City  Ry.  v.  Ch.  W.  Div.  By., 
87  111.  317. 

CONSTITUTION  O.F  1870. 

214.  EMINENT  DOMAIN — limitations  on  the  right.     ART. 
2,  §  13.     Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation.     Such  compensation, 
when  not  made  by  the  state,  shall  be  ascertained  by  a  jury, 
as  shall   be  prescribed  by  law.     The  fee  of  land  taken  for 
railroad  tracks,  without  consent  of  the  owners  thereof,  shall 
remain  in  such  owners,  subject  to  the  use  for  which  it  is  taken. 
[R.  S.  1887,  p.  55;  S.  &  0.,  p.  105,  1037;  Cothran,  p.  3.J 

215.  EMINENT  DOMAIN — property  and  franchises  of  cor- 
porations— -jury  trial.     ART.  11,  §  14     The  exercise  of  the 
power,  and  the  right  of  eminent  domain,  shall  never  be  so 
construed  or  abridged  as  to  prevent  the  taking,  by  the  gen- 
eral assembly,  of  the  property  and  franchises  of  incorporated 
companies  already  organized,  and   subjecting  them   to  the 
public   necessity  the  same  as  of  individuals.     The  right  of 
trial  by  jury  shall  be  held  inviolate  in  all  trials  of  claims  for 
compensation,  when,  in  the  exercise  of  the  said  right  of  emi- 
nent domain,  any  incorporated  company  shall  be  interested 
either  for  or  against  the  exercise  of  said  right.     [R.  S.  1887, 
p.  72;  S.  &  C.,  p.  163,  1037;  Cothran,  p.  30.] 

DECISIONS. 

216.  EMINENT  DOMAIN — when  clause  took  effect.    These  provis- 
ions were  not  merely  prospective  in  their  effect,  but  operated  inpre- 
senti  without  legislative  action.    People  v.  McRoberts,  62  111.  38;  Mit- 
chell v.  III.  St.  L.  R.  R.  &  Coal  Co.,  68  111.  286. 

217.  SAME — repeal  of  former  laws.    The  provision  abrogated  all 
existing  laws  for  the  assessment  of  damages  by  commissioners,  apprais- 
ers or  supervisors,  so  that  the  assessment  of  damages  in  such  old  ways, 
after  it  took  effect,  was  void.    Kine  v.  Defenbaugh,  64  111.  291;  People 
v.  McRoberts,  62  111.  38.    It  repealed  so  much  of  the  act  of  1852  as 
authorized  the  land  to  be  entered  upon  before  an  assessment  of  dam- 
ages by  a  jury.    Mitchell  v.  III.  &  St.  L.  R.  R.  &  Coal  Co.,  68  111.  286. 

218.  SAME — effect  on  prior  rights  and  unfinished  proceedings.   A 
constitution  operates  only  prospectively  unless  clearly  expressed  other- 
wise, leaving  all  past  transactions  unaffected.    Hence,  when  work  was 
commenced  on  a  street  and  it  was  mostly  completed  when  the  constitu- 
tion took  effect,  it  was  held  that  a  lot  owner  whose  lot  was  not  taken, 
could  not  recover  compensation  for  damages  to  it.    Chicago  v.  Rum- 
sey,  87  111.  348. 

219.  SAME — not  conferred  by  the  constitution.    The  right  of  emi- 
nent domain  is  not  conferred  by  the  constitution,  but  only  recognized 
and  limited.    But  the  power  to  declare  under  what  circumstances  it 
may  be  exercised,  and  to  provide  for  the  mode  of  its  exercise,  is  con- 
ferred upon  the  general  assembly  by  that  clause  vesting  in  it  the  legis- 
lative power.     L.  S.  &  M.  S.  R.  R.  v.  Ch.  &  W.  Ind.  R.  R.,  97  111.  506. 

220.  SAME— limitation.    This  constitutional  provision  is  a  limit- 
ation upon  the  exercise  of  the  power,  which,  but  for  such  limitations, 


AND  EMINENT  DOMAIN.  29 

is  plenary,  and  might  be  exercised  ad  libitum.  Chicago  v.  Larned, 
34  111.  203;  Johnson  v.  Joliet  &  Ch.  R.  R.,  23  111.  202;  E.  St.  L.  v.  St. 
John,  47  111.  463. 

221.  SAME— tows  repealed  by.    The  first  six  sections  of  the  act  of 
1852,  which  provide  for  the  tiling  of  a  petition,  due  notice  to  the  per- 
sons interested,  the  appointment  of  commissioners,  their  inspection 
of  the  premises,  and  a  report  of  the  compensation  assessed  by  them  to 
be  filed  with  the  clerk  of  the  circuit  court,  are  in  no  sense  in  conflict 
with  the  constitution  of  1870,  and  are  not  abrogated  by  it.    People  v. 
McRoberts,  62  111.  38. 

222.  But  the  seventh  section  making  the  decision  of  the  commis- 
sioners conclusive  upon  the  parties  before  they  can  have  a  trial  by 
jury,  is  inconsistent  with  the  constitution  of  1870.    Their  decision  does 
not  conclude  the  owner  or  confer  any  right  upon  the  corporation, 
unless  he  assents  by  an  acceptance  of  the  compensation,  or  in  some 
other  manner.    Ib. 

223.  EMINENT  DOMAIN— effect  on  taxing  power.    The  limitation 
in  the  constitution  of  1870  (Art.  2,  §  13),  relates  entirely  to  the  subject 
of  eminent  domain,  and  has  no  reference  to  the  taxing  power.  '  White 
v.  People,  94   111.  604;  Johnson  v.  /.  &  Ch.R.R.,  23  111.  202;  Johnson 
v.  Stark  Co.,  24  111.  75;  Harward  v.  St.  Glair  Drain.  Co.,  51  111.  130; 
Hessler  v.  Drainage  Commissioners,  53  111.  105. 

224 .  SAME — special  assessments  not  affected  by.    The  levy  of  spe- 
cial assessments  for  building  sidewalks,  &c.,  is  not  a  taking  of  private 
property  under  the  right  of  eminent  domain,  but  is  the  exercise  of  the 
right  of  taxation.     White  v.  People,  94  111.  604. 

225.  CONSTITUTION — application  to— completed  proceedings.  The 
constitutional  provision  that  the  fee  to  lands  taken  for  right  of  way 
shall  not  pass,  but  remain  in  the  land-owner,  has  no  application  to  pro- 
ceedings completed  before  the  adoption  of  the  constitution.    T.  P.  & 
W.  Ry.  v.  Pence,  68  111.  524. 

226.  SAME— not  applicable  to  proceeding  commenced  under  old 
one.    A  proceeding  to  condemn  land  by  a  railway  company  for  a  right 
of  way  was  commenced  prior  to  the  adoption  of  the  constitution  of 
1870,  under  a  charter  which  gave  the  land  taken  in  fee  simple  to  the 
company,  but  the  assessment  of  damages  was  had  after  its  adoption: 
If  eld,  that  the  proceeding  was  governed  by  the  charter  under  which 
it  was  commenced.    P.  &  R.  I.  R.  R.  v.  BirUett,  62  111.  332. 

227.  NATURE  or  POWER.    The  right  of  eminent  domain  being  an 
inherent  attribute  of  sovereignty,  exists  independently  of  written 
constitutions  or  statutory  laws,  though  its  exercise  is  usually  regula- 
ted by  appropriate  legislation.    Sholl  v.  German  Coal  Co.,  —  111.  — . 
Filed  Jan.  25, 1887. 

228.  The  right  of  eminent  domain  is  founded  upon  public  utility 
and  necessity,  and  its  exercise  is  a  strictly  legislative  function,  but 
subject  to  the  right  of  the  courts  to  determine  whether  the  use  for 
which  property  is  sought  to  be  taken,  is  a  public  one,  and  whether  the 
proceedings  have  been  conducted  according  to  the  law  made  on  the 
subject.    But  the  legislature  is  the  exclusive  judge  of  the  necessity  or 
emergency  justifying  the  exercise  of  the  power.    Ib. 

229.  GRANT  IN  RESTRAINT  OF  THE  RIGHT.    The  right  of  eminent 
domain  is  an  element  of  sovereignty,  and  a  legislative  grant  or  con- 
tract in  restraint  of  a  free  exercise  of  this  right,  is  not  binding  on  the 
state,  and  does  not  fall  within  the  inhibition  of  the  federal  constitu- 
tion relating  to  laws  impairing  the  obligation  of  contracts.    Hyde 
Park  v.  Oakwoods  Cem.  Assoc.,  119  111.  141. 


30  KAILBOADS,  WAREHOUSES, 


WHAT  CONSTITUTES  A  TAKING  OR  DAMAGING. 

230.  PARTIAL.    The  constitutional  provision  (1848)  applies  as  well 
to  secure  the  payment  for  property  partially  taken  for  the  use  of  a 
street,  as  when  wholly  taken  and  converted  into  a  street.    The  degree 
to  which  property  is  taken  makes  no  difference  in  the  application  of 
the  principle.    Nemns  v.  Peoria,  41  111.  502.    See  O.  &  M.  Ry.  v.  Wac;h- 
ter,  —  111.  — .    Filed  Jan.  20,  1888. 

231.  BY  CROSSING  RAILROAD  TRACK.    The  construction  of  a  rail- 
road track  across  a  street  upon  which  another  railroad  has  its  track, 
though  built  on  the  same  grade,  is  a  taking  of  the  latter's  property 
within  the  constitution.    Ch.  &  W.  Ind.  R.  R.  v.  Ch.  St.  L.  &  P.  R.  R., 
15  Bradw.  587. 

232.  NEW  BURDEN — highway  for  telegraph.    The  use  of  a  high- 
way for  a  telegraph  is  a  new  and  additional  burden  on  the  fee  not  con- 
templated on  the  assessment  of  damages,  for  which  the  owner  of  the 
fee  is  entitled  to  compensation.    Board  of  Trade  Tel.  Co.  v.  Barnett, 
107  111.  507. 

233.  WHAT  is  A  TAKING.    The  right  of  the  state  to  take  private 
property  for  public  use  cannot  be  asserted  by  mere  enactment.    This 
is  not  a  taking.    Cook  v.  South  Park  Comrs.,  61  111.  115. 

234.  BY  DAMAGING.    Until  the  adoption  of  the  constitution  of 
1870,  it  was  the  settled  doctrine  of  this  court  that  any  actual  physical 
injury  to  private  property  by  reason  of  the  erection,  construction  or 
operation  of  a  public  improvement  in  or  along  a  public  street  or  high- 
way, whereby  the  appropriate  use  or  enjoyment  of  property  on  the 
street,  was  materially  interrupted  or  its  value  substantially  impaired, 
was  regarded  as  a  taking  of  private  property  to  the  extent  of  the 
damages  thereby  sustained.    But  the  remedy  was  restricted  to  cases 
of  direct  physical  injury.    Rigney  v.  Chicago,  102  111.  64. 

235.  NEW  REMEDY — damage  to  property  not  touched.    The  con- 
stitution of  1870,  providing  that  private  property  shall  not  be  "  dam- 
aged for  public  use,"  gives  redress  in  cases  not  provided  for  in  the 
constitution  of  1848,  and  embraces  every  case  where  there  is  a  direct 
physical  obstruction  or  injury  to  the  right  of  user,  or  enjoyment  of 
private  property,  by  which  the  owner  sustains  some  special  damage  in 
excess  of  that  sustained  by  the  public  generally.    76. 

236.  PROPERTY  DEFINED.     Property,   in   its  appropriate   sense, 
means  that  dominion  or  indefinite  right  of  user  and  disposition  which 
one  may  lawfully  exercise  over  particular  things  or  objects,  and  gener- 
ally to  the  exclusion  of  all  others,  and  doubtless  this  is  substantially 
the  sense  in  which  the  word  is  used  in  the  constitution  as  to  the 
taking  or  damaging  of  private  property  for  public  use.    But  the  word 
is  often  used  to  indicate  the  subject  of  the  property  or  the  thing 
owned.    Rigney  v.  Chicago,  102  111.  64. 

237.  VACATION  OF  STREET.    The  vacating  of  a  public  street  not 
adjoining  or  contiguous  to  a  particular  lot,  which  does  not  deprive 
the  owner  of  access  to  or  egress  from  such  lot,  can  in  no  sense  be  con- 
strued as  either  taking  or  damaging  private  property  for  public  use. 
E.  St.  Louis  v'O'Flynn,  119  111.  200. 

238.  The  law  will  not  regard  the  land  as  taken  or  acquired  until 
the  last  act  in  the  proceeding — that  is,  payment  is  performed.    Cook 
v.  S.  Park  Comrs.,  61  111.  115. 

239.  TAKING   PROHIBITED — requiring  new  duty.    A  municipal 
corporation  cannot  by  ordinance  require  a  railway  company  to  make 
proper  crossings  of  its  road  over  a  new  street  laid  out  and  opened  Jong 
after  the  completion  of  the  railroad,  where  no  such  duty  is  imposed 


AND  EMINENT  DOMAIN.  31 

by  its  charter  or  the  general  law  in  force  when  the  company  was 
created.  Even  the  legislature  cannot  impose  such  burden  without 
making  compensation.  /.  O.  R.  R.  v.  Bloomington,  76  111.  447. 

240.  Under  proceedings  to  condemn  for  public  use  the  filing  of  the 
petition  is  not  a  taking  of  the  property,  and  it  would  be  a  trespass  to 
take  possession  before  the  damages  are  ascertained.     South  Park 
Comrs  v.  Duulevy,  91  111.  49. 

241.  NEW  AND  ADDITIONAL  BURDEN— protection  against.    The 
use  of  a  street  or  highway  for  a  telegraph  is  a  new  and  additional 
burden  upon  the  fee  not  contemplated  on  the  assessment  of  damages 
in  case  the  easement  was  obtained  by  condemnation,  or  had  in  view 
by  the  land  owner  in  case  of  a  dedication  for  ordinary  highway  pur- 
poses, and  for  such  additional  burden  the  owner  of  the  fee  is  entitled 
to  compensation,  and  if  entry  be  made  without  an  agreement  with 
the  owner  or  a  condemnation,  the  owner  may  have  his  action.    Board 
of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507. 

WHAT   MAY  BE  TAKEN. 

242.  FERRY  PRIVILEGE.    A  grant  of  a  franchise  or  privilege  by 
the  state  to  a  person  or  corporation,  such  as  a  ferry,  is  subject  to  an 
implied  reservation  in  favor  of  the  sovereign  power  that,  when  the 
public  good  requires  it,  all  the  rights  and  privileges  conferred  may  be 
resumed  upon  adequate  compensation  being  made  therefor  in  the 
manner  required  by  law.    Mills  v.  St.  Clair  Co..  2  Gilm.  197, 227. 

248.  STATE  GRANTS.  All  grants  made  by  the  state,  whether  to 
the  canal  trustees  or  others,  although  irrevocable,  are  subject  to  the 
right  of  eminent  domain,  unless  that  right  is  expressly  relinquished. 
III.  &  Mich.  Canal  v.  Ch.  &  R.  I.  R.  R.,  14  111.  314. 

244.  A  railway  charter  giving  the  power  to  condemn  the  right  of 
way  over  lands  granted  by  the  state  to  the  canal  trustees  for  a  rail- 
road, and  the  effect  of  the  contemplated  road  in  diminishing  the  reve- 
nues and  business  of  the  canal,  is  not  in  violation  of  the  contract  of 
the  state  with  the  trustees.    Ib. 

245.  RAILROAD  PROPERTY — subject  to.    The  lands  of  a  railway 
corporation,  not  absolutely  necessary  for  the  enjoyment  of  its  fran- 
chise, are  subject  to  the  right  of  eminent  domain,  under  legislative 
authority,  the  same  as  those  of  individuals,  though  they  may  be  taken 
from  the  actual  and  profitable  use  of  the  corporation.    P.  P.  &  J.  R. 
R.  v.  P.  &  8.  R.  R.,  66  HI.  174. 

246.  Property  of  a  railway  or  other  corporation,  though  acquired 
by  condemnation,  is  subject  to  be  taken  for  the  public  use  the  same 
as  that  of  private  persons.    C.  R.  I.  &  P.  R.  R.  v.  Town  of  Lake,  71 
111.  333;  to  same  effect,  Richmond  R.  R.  v.  Louisa.  R.  R.f  13  How.  74; 
West  River  Bridge  Co.  v.  Disc,  6  How.  529;  Boston  Water  Power  Co. 
v.  Boston  &  Worcester  R.  R.,  23  Pick.  360. 

247.  PROPERTY  IN  PUBLIC  STREET — injunction.    A  horse  rail- 
way company  has  no  right  to  condemn  and  take  for  its  joint  use  a 
part  of  a  previously  constructed  railway  of  another  company  in  suc- 
cessful operation,  and  thus  render  the  fragments  not  so  taken  unpro- 
ductive, and  make  the  franchise  of  such  other  company  of  but  little 
value:  and  if  such  an  attempt  is  made,  a  court  of  equity  will  enjoin 
the  same.    Central  City  Horse  Ry.  v.  Ft.  Clark  Horse  Ry.,  81  111.  523. 

248.  The  statute  authorizing   the  condemnation    by  horse    and 
dummy  roads  (R.  S.  1887,  ch.  66,)  contemplates  private  property  alone, 
and  not  property  occupied  and  used  by  the  public.    Ib. 

249.  By  a  very  liberal  construction  of  the  statute,  and  of  the  emi- 
nent domain  act,  it  may  be  that  a  newly  organized  horse  railway  com- 


32  BAILROADS,  WAREHOUSES, 

pany  may  condemn  the  entire  road  of  a  similar  company  previously 
incorporated,  and  appropriate  it  to  its  own  use.    Ib. 

250.  The  right  of  a  horse  railway  company,  under  a  contract  with 
a  city  providing  against  having  a  similar  railway  on  certain  streets 
running  parallel  with  its  road,  is  property  within  the  sense  of  the 
eminent  domain  act,  and  may  be  condemned  for  the  use  of  a  new 
company  when  the  public  necessity  so  requires.    Metropolitan  City 
Ry.  v.  Ch.  W.  Div.  Ry..  87  111.  317. 

251.  Under  the  constitution  the  property  and  franchises  of  incor- 
porated companies  may  be  appropriated  to  the  public  use  as  well  as 
the  property  of  individuals,  and  the  exercise  of  the  right  of  eminent 
domain  can  never  be  so  construed  or  abridged  as  to  prevent  the 
general  assembly  from  appropriating  such  property  when  the  public 
exigency  demands  it.     Whatever  exists  in  any  form,    tangible  or 
intangible,  is  subject  to  the  exercise  of  this  power.    Ib. 

252.  PROPERTY   IN  PUBLIC  USE— taking  for  same  use.    When 
property  has  already  been  appropriated  to  public  use,  and  is  in  fact 
in  such  use  in  the  hands  of  one  railway  corporation,  it  cannot  right- 
fully be  taken  from  such  corporation,  even  by  authority  of  a  statute, 
for  the  purpose  of  subjecting  it  to  the  same  public  use  in  the  hands 
of  another  corporation.    L.  S.  &  M.  8.  R.  It.  v.  Ch.  &  W.  Ind.  R.  R., 
97  111.  506. 

253.  SAME  —  of  the  new  use.    To  warrant  the  taking  of  property  of 
one  party  already  appropriated  to  public  use.  and  placing  it  wholly  or 
in  part  in  the  hands  of  another  p^rty,  it  is  essential  that  the  new  use 
shall  be  for  the  benefit  of  the  public.    Whether  the  new  use  be  differ- 
ent from  the  present  one  is  a  judicial  question  for  the  court  to  decide, 
but  whether  a  public  benefit,  and  the  change  will  be  for  the  benefit  of 
the  public,  are  political  questions  to  be  decided  by  the  law-making 
power.    Ib. 

254.  In  a  proceeding  to  condemn  a  part  of  the  property  of  one  rail- 
way company  for  the  use  of  another  leading  from  other  and  different 
points  and  regions  of  country,  the  use  is  not  the  same  as  that  of  the 
prior  road,  but  is  rather  a  joint  or  co-operative  use,  to  be  exercised  and 
enjoyed  by  both  companies,  so  as  to  furnish  the  public  an  additional 
line  of  travel  and  transportation,  and  may  be  properly  granted  by  the 
legislative  action.    Ib. 

255.  CORPORATE  PROPERTY — how  far  private.    The  property  of 
corporations  as  to  the  ownership  thereof  and  the  profit  and  gain  to  be 
made  from  its  use,  is  to  all  intents  private  property,  although  applied 
to  a  use  in  which  the  public  have  an  interest,  and  §  14,  Art.  11,  of  the 
constitution,  simply  places  such  property,  like  that  of  natural  persons, 
within  the  power  of  eminenc  domain,  as  it  was  before  any  such  decla- 
ration, and  protects  it  the  same  as  any  other  private  property.    Ib. 

256.  The  power  of  eminent  domain  is  not  conferred  by  the  consti- 
tution, but  is  an  inherent  attribute  of  sovereignty.    §  13,  Art.  2,  recog- 
nizes the  power,  and  its  purpose  is  to  limit  and  regulate  its  exercise. 
§  14,  Art.  11,  recognizes  the  same  power,  but  does  not  profess  to  grant 
or  add  to  it.    It  is  only  an  authoritative  explanation  of  the  nature  and 
extent  of  this  power,  and  it  is  but  declaratory  of  the  power  the  state 
would  have  had  without  it.    Ib. 

256a .  POWER  TO  CONDEMN  ONE  RAILWAY  FOR  USE  or  ANOTHER— 
taking  part  of  another  road.  The  legislature,  subject  to  the  consti- 
tutional limitations,  has  the  power  by  a  general  law,  to  authorize  one 
railway  company  to  condemn  a  part  of  the  right  of  way  of  another 
longitudinally,  several  miles,  when  necessary  for  the  construction  and 
use  of  a  new  road;  but  without  such  legislative  authority  this  cannot 


AND  EMINENT  DOMAIN.  33 

be  done.    III.  C.  R.  R.  v.  <?.,  B.  &  N.  R.  R.,  —  111.  — .    Filed  Sept.  26, 
1887. 

2506.  The  general  grant  of  power  given  in  §  17,  chap.  114  relating 
to  railroads,  to  take  and  condemn  real  estate  tor  railroad  purposes,  is 
not  intended  to  extend  to  property  already  applied  to  a  public  use.  16. 

256c.  While  the  legislature  has  provided  by  law  for  the  crossing 
and  intersection  of  one  railroad  over  and  across  the  track  and  right  of 
way  of  another,  and  required  the  company  whose  road  is  crossed  or 
intersected,  to  unite  with  the  new  railway  company  in  forming  such 
intersections  and  connections,  and  grant  the  proper  facilities  therefor, 
it  has  not  given  a  new  railway  corporation  the  right  to  condemn  the 
right  of  way  of  a  prior  company  longitudinally  for  a  number  of 
miles  in  length,  or  any  part  thereof,  to  the  exclusion  of  such  prior 
company.  Ib. 

256cZ.  PROPERTY  APPROPRIATED  TO  PUBLIC  USE— limited  to  cross- 
ings and  connections.  The  power  to  take  the  right  of  way,  or  any 
part  of  the  right  of  way  of  another  railway  company,  is  expressly  lim- 
ited by  the  statute  to  the  purposes  of  crossing,  intersecting  and  unit- 
ing, or  more  shortly  stated,  to  the  connections  of  the  two  roads.  Ib. 

256e.  The  petitioning  company  has  no  power  under  the  statute  to 
take  any  part  of  the  right  of  way  of  another  company,  except  for  the 
purpose  of  some  connection  resulting  from  a  crossing  or  intersection, 
or  the  uniting  and  joining  of  the  two  roads  at  some  point  on  the  line 
of  the  new  road,  selected  by  the  petitioning  company.  Ib. 

257.  CROSSING  ANOTHER  ROAD.    One  railroad  company  is  entitled 
to  have  condemnation  under  the  statute  for  its  right  of  way  across 
the  right  of  way  of  a  previously  constructed  railroad,  but  the  com- 
pany whose  right  of  way  is  condemned  is  entitled  to  be  fully  compen- 
sated for  all  damages  it  may  sustain  in  consequence  thereof.   St.  L.,  J. 
&  Ch.  R.  R.  v.  S.  cfc  N.  W.  R.  R.,  96  111.  274. 

258.  PRESUMPTION   AGAINST   MONOPOLY.     The  public  welfare 
requires  that  the  business  of  carrying  shall  be  open  to  competition  as 
far  as  possible,  and  no  monopoly  in  that  regard,  however  limited,  can 
be  presumed  to  have  been  intended  by  the  legislature  in  the  enactment 
of  the  general  law  for  the  formation  of  railroads.   E.  St.  L.  Connecting 
Ry.  v.  E.  St.  L.  Union  Ry.,  108  111.  265. 

259.  The  mere  grant  of  the  right  to  build  a  railroad  between  given 
points,  creates  no  implied  obligation  on  the  state  not  thereafter  to 
grant  the  right  to  build  other  railroads,  parallel  with  it  between  the 
same  termini ;  nor  does  it  imply  an  obligation  on  the  part  of  the  state 
that  other  railroads  with  their  tracks  and  switches  shall  not  thereafter 
be  granted  the  right  to  cross  the  state  in  a  different  direction,  and 
thus  pass  over  its  tracks  and  switches.    Ib. 

260.  RIVAL  RAILROAD— injunction.    Under  the  laws  of  this  state, 
a  railway  corporation  already  organized  and  operating  its  road,  cannot 
enjoin  another  such  corporation  organized  under  the  same  general  law, 
from  building  a  rival  road  between  the  same  termini,  and  parallel 
with  the  track  of  the  former  for  the  transaction  of  the  same  business, 
although  the  main  and  lateral  tracks  and  switches  may  be  intersected 
and  crossed  by  the  proposed  new  road,  no  continuous  portion  of  its 
track  being  sought  to  be  taken.    Ib . 

261.  The  fact  that  the  construction  of  the  new  road  may  damage 
the  business  of  the  old  one,  and  cause  delay  in  operating  its  trains, 
affords  no  ground  for  enjoining  proceedings  to  condemn  for  a  right  of 
way  by  the  new  corporation.    Legal  damages  assessed,  as  is  provided 
by  law,  will  afford  the  old  company  an  adequate  remedy  for  all  the 
injury  it  may  sustain.    Ib. 

—4 


34  KAILROADS,  WAREHOUSES, 

262.  PROPERTY  DEVOTED  TO  PUBLIC  USE.    In  the  absence  of  a 
clearly  expressed  intention  to  the  contrary,  the  courts  will  not  so  con- 
strue a  railway  charter  as  to  authorize  one  company  to  take  the  prop- 
erty of  another  already  devoted  to  a  particular  public  use.     When 
there  is  no  change  in  the  use,  it  becomes  a  matter  of  mere  private  con- 
cern, without  at  all  affecting  the  public  interests.    This  is  when  the 
taking  merely  changes  the  ownership  and  not  the  use.    Ch.  &  N.  \V. 
Ry.  v.  Ch.  &  E.  R.  R.,  112  111.  589. 

263.  WHEN  USE  is  DIFFERENT.    The  condemnation  of  a  piece  of 
ground  for  a  right  of  way,  and  the  construction  of  an  abutment 
thereon  for  a  bridge  essential  for  its  use  as  a  right  of  way,  which  piece 
of  ground  had  before  been  used  by  another  railway  company  for  a 
wharf  or  dock  for  the  receiving  and  discharge  of  freights,  is  not  a  con- 
demnation for  the  same  public  use  as  that  to  which  the  property  was 
already  applied.    Ib. 

264.  BIGHT  TO  CONDEMN  A  CROSSING.    The  sixth  clause  of  §  19 
of  the  railroad  law  of  1872  confers  power  upon  any  railroad  corpora- 
tion formed  under  that  act,  to  cross,  intersect,  &c.,  any  other  railroad 
before  constructed  at  any  point  in  its  route,  and  upon  the  grounds  of 
such  other  company;  and  provides  that  if  the  two  companies  cannot 
agree  upon  the  compensation  to  be  made,  or  the  points  and  manner  of 
such  crossings,  the  same  shall  be  ascertained  and  determined  in  the 
manner  provided  by  law,  which  means  by  a  proceeding  under  the  emi- 
nent domain  act.    Ch.  &  W.  Ind.  R.  R.v.  III.  C.  R.  R.,  113  111.  156. 

265.  EIGHT  TO  ADDITIONAL  CROSSINGS.    The  fact  that  a  railway 
company  has  acquired  a  strip  of  land  thirty  feet  wide  across  another 
railway  company's  right  of  way  for  a  crossing  upon  which  to  lay  two 
tracks  at  the  expense  of  the  former,  by  mutual  agreement  and  for  a 
consideration  paid,  will  not  preclude  the  former  from  obtaining  by 
condemnation  an  additional  right  of  way  of  twenty  feet  across  the 
latter  company's  road,  when  rendered  necessary  by  the  increased  busi- 
ness of  the  former  road,  where  there  is  no  restriction  of  such  right  in 
the  agreement;  and  it  matters  not  that  such  increased  business  is 
brought  about  by  its  contracts  of  connection  with  other  roads.    J6. 

266.  SAME — effect  of  prior  contract.    Where  a  right  of  one  railway 
company  to  cross  another's  road  by  two  tracks  has  been  acquired  by 
purchase,  and  limited  to  a  right  of  way  thirty  feet  wide,  and  it  does 
not  appear  that  the  relinquishment  for  the  future  of  any  right  of  fur- 
ther application  for  additional  facilities  of  crossing  in  any  way  entered 
into  the  amount  of  the  compensation  which  was  arranged,  and  the 
right  to  lay  additional  tracks  across  the  same  road  is  sought  by  con- 
demnation, the  company  seeking  to  condemn  will  not  be  required  to 
surrender  its  rights  acquired  by  the  purchase  in  order  that  it  may  have 
the  condemnation  sought,  and  have  compensation  assessed  for  the 
four  tracks  in  that  proceeding.    Ib. 

267.  SAME — ground  of  necessity  immaterial.    It  matters  not  that 
the  necessity  for  an  increase  of  the  right  of  way  for  additional  tracks 
is  caused  by  the  use  of  its  road  by  other  companies  acting  under  its 
lease  or  by  contract;  nor  does  it  matter  by  what  corporation,  or  cor- 
porations, its  road  is  actually  operated.    It  is  still  a  public  use,  and  in 
such  case  the  need  of  the  lessees  is  that  of  the  lessor  company,  and  the 
lessees  may  proceed  to  condemn  in  the  name  of  the  lessor  when  the 
public  necessity  so  requires.    Ib. 

268.  EASEMENT  IN  HIGHWAY.    Where  a  railway  company  acquires 
in  perpetuity  an  easement  in  so  much  of  a  public  street  as  it  occupies 
for  its  road,  this  easement  is  property,  and  it  is  as  much  protected 
from  unlawful  invasion  as  any  other  property,  and  cannot  be  taken 


AND  EMINENT  DOMAIN.  35 

or  damaged  for  public  use  without  just  compensation.    Ch.  &  N.  W. 
Ry  v.  Village  of  Jefferson,  14  Bradw.  615. 

269 .  SAME — new  burden  on.    Where  a  railway  company  acquires 
an  easement  or  right  of  way  in  a  public  street  or- highway,  sub- 
ject to  the  public  right  to  use  the  same  for  the  orMnary  purposes 
of  a  highway,  the  occupation  of  a  considerable  portion  of  the  street 
for  the  construction  of  a  ditch  for  the  purpose  of  draining  adjacent 
land,  is  a  new  use  of  the  street,  for  which  compensation  must  be 
made  in  case  the  property  of  the  railway  company  therein  is  damaged 
thereby.    If  the  city  or  village  makes  no  provision  to  pay  such  dam- 
ages, the  company  may  enjoin  the  construction  of  the  ditch.    Ib. 

270.  If  a  railway  company,  under  permission  from  village  author- 
ities, constructs  its'  road  in  a  public  street,  it  will  thereby  acquire  a 
perpetual  easement  in  the  street,  which  consists  in  the  right  to  main- 
tain, use  and  enjoy  its  railroad  free  from  hindrance  or  molestation, 
except  such  as  is  incident  to  the  proper  and  ordinary  use  of  the  street; 
and  this  right  will  be  as  much  protected  from  unlawful  invasion  as 
any  other  property.    Ch.  &  W.  Ind.  R.  R.  v.  Ch.  tit.  L.  &  Pittsburgh 
R.  R.,  15  Bradw.  587. 

271.  The  construction  of  a  railway  track  across  a  public  street 
upon  which  another  railway  company  has  its  tracks,  although  built 
on  the  same  grade,  is  a  taking  of  the  latter's  property  within  the 
meaning  of  the  constitution,  and  the  latter  may  have  the  construction 
enjoined  until  compensation  is  made.    Ib. 

272.  A  leasehold  interest  for  999  years  in  a  perpetual  easement  of 
another  railway  company  in  a  public  street,  is  private  property,  and 
cannot  be  taken  or  damaged  by  another  railway  corporation  without 
the  payment  of  compensation.    If  attempted  to  be  taken  or  damaged 
by  condemnation  proceedings  against  the  lessor  company  alone,  the 
proceeding  may  be  enjoined.    Ch.  &  E.  R.  R.  v.  Englewood  connect- 
ing Ry.,  17  Bradw.  141. 

273.  Where  a  railway  company  has,  by  agreement,  acquired  the 
right  to  lay  two  railroad  tracks  over  a  railroad  previously  constructed, 
and  it  seeks  to  condemn  an  additional  strip  on  which  to  construct  two 
others  of  its  tracks  across  the  same  road,  the  fact  that  it  will  produce 
an  obstruction  and  inconvenience  to  the  company  whose  road  is 
sought  to  be  crossed,  is  no  reason  for  enjoining  the  proceeding  to  con- 
demn, as  all  the  damages  caused  thereby  will  have  to  be  paid,  and  it 
will  be  presumed  that  they  will  be  fully  awarded.    Ch.  &  W.  Ind. 
R.  R.  v.  I.  C.  R.  R.,  113  111.  156. 

274.  RAILROAD  RIGHT  or  WAY— damages  for.    A  right  of  way 
for  a  railroad  is  not  a  corporate  franchise,  but  is  property  acquired  in 
the  exercise  of  such  franchise;  and  if  it  is  sought  to  be  condemned, 
the  party  in  whom  the  same  is  vested  in  trust,  will  have  the  right  to 
present  his  claim  for  compensation  and  be  heard  in  support  thereof. 
Johnson  v.  F.  &  M.  River  R.  R.,  116  111.  521. 

275.  LEASEHOLD  ESTATE.    The  estate  of  a  tenant  for  years  may 
be  taken  for  the  public  use  upon  precisely  the  same  terms  as  any 
other  estate  in  lands  may  be,  on  payment  of  compensation.    Chicago 
v.  Garrtty,  1  Bradw.  474. 

276.  EASEMENT.      Where    a    party   conveys   land    reserving   in 
his  deed  the  privilege  of  a  water  power,  and  the  right  to  enter  upon 
so  much  of  the  land  as  may  be  needful  for  an  abutment  on  the  bank, 
he  has  such  an  interest  in  the  land  as  may  be  affected  by  the  construc- 
tion of  a  railroad,  and  the  company  cannot  appropriate  the  land  to  its 
own  use  without  ascertaining,  in  the  mode  pointed  out  in  the  statute, 
what  damage  he  will  sustain.    Galena  &  8.  Wis.  R.  R.  v.  Haslam,  73 
111.  494. 


36  RAILROADS,  WAREHOUSES, 

277.  RAILROAD  CROSSING — change  of  use — right  to  select  place  of 
crossing.    Under  the  present  legislation,  a  railroad  company  is  ex- 
pressly authorized,  in  locating  and  constructing  its  road,  to  cross  and 
intersect  any  intervening  railroads  at  any  point  in  its  route,  and  this 
by  necessary  implication  is  a  legislative  declaration  that  the  subordi- 
nation of  premises  already  occupied  by  a  railroad  company  to  the  uses 
of  another  for  a  crossway,  is  a  change  in  the  use  which  the  public 
good  demands;  but  the  corporation  seeking  the  right  of  way,  when 
the  parties  cannot  agree,  must  select  the  place  and  manner  of  the  pro- 
posed crossing,  and  the  character  and  condition  of  the  use  sought,  and 
this  should  be  stated  in  the  petition  to  afford  the  proper  basis  for 
ascertaining  the  compensation  to  be  paid.    L.  S.  &  M.  S.  R.  R.  v.  Ch. 
&  W.  Ind.  R.  R.,  97  111.  506.    See  ante  91-93. 

RIGHT  TO  JURY  TRIAL. 

278.  UNDER  CONSTITUTION  or  1848.    The  provisions  in  the  con- 
stitution of  1848  relating  to  jury  trials— §  8,  Art.  13— that  no  one  shall 
be  deprived  of  his  life,  liberty  or  property,  except  by  the  judgment  of 
his  peers,  or  the  law  of  the  land,  have  no  application  to  condemnation 
proceedings  under  the  right  of  eminent  domain.    Johnson  \.  Joliet  & 
Ch.  R.  R.,  23  111.  202. 

279.  It  is  not  necessary  that  a  jury  shall  be  called  to  aid  in  con- 
demnations for  right  of  way.    Ib. 

280.  ON  APPEAL — act  of  1852.    On  an  appeal  to  the  circuit  court, 
in  a  case  for  the  assessment  of  damages  on  the  condemnation  of  the 
right  of  way  of  a  railroad,  the  statute  gives  a  trial  by  jury.    This  by 
act  of  1852.    T.  P.  &  W.  Ry.  v.  Darst,  61  111.  231. 

281.  CONSTITUTION  or  1870.    The  just  compensation  for  property 
taken  or  damaged  for  public  use  must  be  ascertained  by  a  jury.    This 
requirement  of  the  constitution  is  affirmative  in  its  character,  and 
implies  an  exclusion  of  any  other  mode  of  fixing  the  compensation. 
People  v.  McRoberts,  62  III  38. 

282.  The  compensation  for  property  damaged,  as  well  as  taken, 
must  be  ascertained  by  a  jury,  and  there  can  be  no  entry  upon  or  pos 
session  of  land  for  public  use  until  the  compensation  for  property 
damaged,  as  well  as  taken,  has  been  paid.    Ib. 

283.  CONDEMNATION— under  act  of  1852.    There  is  enough  in  the 
act  of  1852,  not  abrogated  by  the  new  constitution,  to  enable  private 
property  to  be  acquired  for  public  use.    After  notice  of  the  filing  of 
the  report  of  the  commissioners  the  land  owners  may  by  appeal  bring 
the  proceedings  before  the  circuit  court,  and  if  satisfied  with  the  com- 
pensation fixed,  it  may  be  accepted  and  an  adjustment  made.    If  not 
satisfied,  a  trial  can  be  had  in  the  circuit  court  by  a  jury.    76. 

284.  LAYING  OUT  HIGHWAY.    The  statute  authorizing  the  assess- 
ment of  damages  by  commissioners  of  highways  and  supervisors  on 
appeal  for  land  taken  for  highways,  was  repealed  and  rendered  inop- 
erative by  §  13,  Art.  2  of  the  constitution  of  1870.    Kine  v.  Defen- 
baugh,  64  111.  291. 

285 .  The  assessment  of  damages  to  a  party  by  reason  of  the  laying 
out  and  construction  of  a  highway  over  his  land  by  the  commissioners 
of  highways,  or  by  the  supervisors  on  appeal  in  a  proceeding  com- 
menced after  the  adoption  of  the  new  constitution,  will  be  void, 
although  no. mode  for  an  assessment  by  a  jury  had  then  been  pro- 
vided.   Ib. 

286.  Where  certain  persons  obligated  themselves  by  their  bond  to 
procure  certain  grounds  for  the  state,  or  to  pay  the  compensation 
required  to  be  paid  to  the  owners  upon  condemnation  thereof  by  the 


AND  EMINENT  DOMAIN.  37 

state:  Held,  that  as  the  compensation  was  not  to  be  paid  by  the  state, 
the  parties  in  interest  had  a  right  to  have  the  compensation  deter- 
mined by  a  jury.  People  v.  Stuart,  97  ill.  123. 

287.  LESS  THAN  TWELVE.    Under  §  5,  Art.  2,  of  the  constitution 
the  legislature  is  authorized  to  provide  for  a  jury  of  less  tnan  twelve 
men  in  the  trial  of  civil  causes  before  justices  of  the  peace.    Under 
this,  a  general  law  for  the  assessment  of  damages  for  land  condemned 
by  commissioners  of  highways  for  roads,  may  constitutionally  provide 
for  a  jury- of  six  men,  and  their  assessment  will  be  valid  and  binding 
on  the  land  owners.    McManus  v.  McDonough,  107  111.  95. 

288.  RIGHT  TO— waiver.    Either  party  has  the  right  to  have  the 
compensation  assessed  by  a  jury,  and  it  is  error  to  deny  the  right;  but 
the  parties  may  waive  or  dispense  with  a  jury,  and  the  finding  of  the 
court  will  be  valid.    C.  M.  &  St.  P.  Ry  v.  Hock,  118  111.  587. 

WHAT  IS  A  PUBLIC  USE. 

289 .  It  is  a  settled  doctrine  that  the  appropriation  of  property  to 
the  construction  or  use  of  a  railroad,  is  an  appropriation  of  such  prop- 
erty to  the  public  use.    C.  R.  I.  &  P.  R.  R.  v.  Joliet,  79  111.  25. 

290.  PUBLIC  GROUNDS — taking  by  state.    Where  directors  of  a 
railway  company,  under  legislative  authority,  locate  and  construct 
their  road  along  and  across  the  public  grounds  and  streets  of  an  unin- 
corporated town,  in  so  doing  they  act  as  public  agents,  and  the  loca- 
tion is  the  act  of  the  state,  unless  such  use  is  inconsistent  with  the  use 
to  which  such  public  grounds  had  been  previously  applied.    76. 

291 .  SAME — estoppel.    Case  and  facts  stated  from  which  the  city 
authorities  were  held  estopped  from  disputing  the  right  of  a  railway 
company  to  use  streets  and  public  grounds  for  right  of  way.    Ib. 

292 .  The  right  to  take  private  property  for  railroad  purposes  by 
the  exercise  of  the  right  of  eminent  domain,  rests  wholly  upon  the 
doctrine  that  the  railroad  use  is  a  public  use.    The  corporation  itself 
is  private  and  it  has  private  rights:  still  its  uses  are  public.    Ib. 

298.  To  authorize  the  taking  of  private  property  under  the  consti- 
tution (of  1848)  the  use  must  be  such  as  is  public  in  its  character,  and 
not  public  merely  because  so  called.  E.  St.  Louis  v.  St.  John,  47 
111.  463. 

294 .  FOR  STREETS.    The  taking  and  appropriating  of  property  for 
a  public  street  or  highway  by  a  municipality  is  a  public  use  in  its 
nature.    Dunham  v.  Hyde  Park.  75  111.  371,  375;  C.  R.  I.  &  P.  R.  R.  v. 
Town  of  Lake,  71  111.  333. 

295 .  Property  taken  for  a  railroad  or  damaged  by  the  construction 
and  operation  of  a  railroad,  is  taken  or  damaged  for  a  public  use. 
Ch.  &  W.  Ind.  R.  R.  v.  Ayres,  106  111.  511. 

296.  RAILROAD  PURPOSES.    Although  a  railway  company  may 
be  a  private  corporation,  yet  the  road  is  to  be  regarded  as  a  public 
improvement,  made  to  subserve  the  public  interests.    Such  roads  are 
of  such  public  use  as  to  justify  the  exercise  of  the  right  of  eminent 
domain.    Ch.  Dan.  &  Vin.  R.  R.  v.  Smith,  62  111.  268, 275. 

297.  Mere  convenience  is  not  sufficient  to  justify  the  exercise  of 
the  right.    The  public  use  must  be  necessary  and  pressing.    Ib. 

298 .  STREETS.    The  taking  of  land  for  a  public  street  or  highway 
by  a  municipality  is  a  public  use  in  its  nature,  and  cannot  be  ques- 
tioned or  denied.    C.  R.  I.  &  P.  R.  R.  v.  Town  of  Lake,  71  111.  333,  336. 

299.  POWER  OF   COURT.    On  application  to  condemn  land  the 
court  has  the  right  to  determine  whether  the  proposed  use  is  public  in 
its  nature  or  not.    Ib. 


38  EAILEOADS,  WAREHOUSES, 

300 .  The  question  whether  the  use  to  which  the  property  is  to  be 
taken  is  a  public  use  or  purpose,  and  whether  such  use  or  purpose  will 
justify  the  exercise  of  such  compulsory  taking,  and,  where  the  power 
is  attempted  to  be  exercised  by  a  corporation,  whether  the  power  is 
delegated  to  it  by  the  legislature,  and  whether  the  uses  and  purposes 
for  which  such  power  is  sought  to  be  exercised  falls  within  the  legis- 
lative grant  of  powers,  are  proper  subjects  of  judicial  determination. 
Ch.  &  E.  III.  R.  R.  v.  Wiltse,  116111.  449. 

301.  PUBLIC    USE— determined  from  nature   of  business  done. 
The  business  proposed  to  be  done,  and  the  manner  of  doing  it,  must 
be  looked  at  in  determining  whether  the  use  to  which  property  is  to 
be  devoted  will  be  a  public  or  private  one.    If,  from  the  nature  of  the 
business  and  the  way  in  which  it  is  to  be  conducted,  it  is  clear  no 
obligation  will  be  assumed  to  the  public,  or  liability  incurred  other 
than  such  as  pertains  to  all  strictly  private  enterprises,  then  the  use 
is  private  and  not  public.    Shott  v.  German  Coal  Co.,  —  111.  — .    Filed 
Jan.  25, 1887. 

302.  The  use  of  a  strip  of  land  by  a  coal  company  upon  which  to 
construct  a  trainway  leading  from  the  coal  works  to  a  railway  track 
is  a  private  use,  and  such  strip  cannot  be  condemned  under  the  act  for 
such  use.    Ib. 


CHAPTEE  47. 

EMINENT  DOMAIN. 

An  act  to  ptoYide  for  the  exercise  of  the  right  of  eminent  domain.    Approved  April 
10, 1872.     In  force  July  1,  1872.     L.  1871-2,  p.  W2. 

303.  COMPENSATION— -jury.     §  1.     Be  it  enacted  by  the 
people  of  the  State  of  Illinois,  represented  in  the  general 
assembly,  That  private  property  shall  not  be  taken  or  dam- 
aged for  public  use  without  just  compensation;  and  that  in 
all  cases  in  which  compensation  is  not  made  by  the  state,  in 
its  corporate  capacity,  such  compensation  shall  be  ascertained 
by  a  jury,  as  hereinafter  prescribed.     [R  S.  1887,  p.  646;  S. 
&  0.,  p.  1041;  Cothran,  p.  646.     See  post  1213-1219,  1220- 
1225a,  1512.] 

304.  LEGISLATURE — its  power  in  respect  to  eminent  domain.    The 
power  to  declare  under  what  circumstances  this  right  may  be  exer- 
cised, and  to  provide  the  mode  of  its  exercise,  is  conferred  upon  the 
general  assembly  by  that  clause  of  the  constitution  which  vests  in 
that  body  the  "  legislative  power"  of  the  state.    L.  S.  &  M.  8.  Ry.  v. 
Ch.  &  W.  Ind.  R.  R.,  97  111.  506. 

305.  STATUTE  REMEDIAL— liberal  construction.    The  statute  is  a 
remedial  one,  and  should  be  liberally  and  beneficially  construed.    Ch. 
&  Eastern  R.  R.  v.  Englewood  Con.  Ry.,  17  Bradw.  141. 

306.  STATUTE  MANDATORY — strict  compliance.    A  statute  pro- 
viding how  the  property  of  an  individual  shall  be  condemned  for  pub- 
lic use  is  not  merely  directory,  but  is  mandatory.    A  strict  compliance 
with  its  provisions  is  necessary.    Mitchell  v.  III.  &  St.  Louis  R.  R.  & 
Coal  Co.,  68  111.  286. 

307.  DEPRIVATION  OF  PROPERTY — only  under  power  of  eminent 
domain.    A  person  cannot  be  deprived  of  his  property  except  by  the 
exercise  of  the  right  of  eminent  domain,  in  wnich  case  just  compen- 


AND  EMINENT  DOMAIN.  39 

sation  must  be  made.  Lake  View  v.  Rose  Hill  Cemetery  Co.,  70  111. 
191, 199. 

308.  ACT  or  1852— how  far  a  repeal  of  act  of  1845.  The  act  of 
1852,  concerning  the  right  of  way,  did  not  repeal  any  of  the  provisions 
of  the  act  of  1845  not  inconsistent  therewith.  Authority  to  acquire 
right  of  way  under  the  act  of  1852,  or  any  other  act,  carried  with  it 
the  power  conferred  by  the  act  of  1845.  Taylor  v.  Petttfohn,  24  111.  312. 

809.  WHAT  LAW  GOVERNS— change  pending  proceeding.  After 
the  institution  of  a  proceeding  in  1852  to  condemn  a  right  of  way  for 
a  railroad,  and  during  its  pendency,  the  law  under  which  it  was  com- 
menced was  amended,  excluding  the  consideration  of  benefits  in  com- 
mon with  other  lands:  Held,  that  the  case  was  governed  by  the  law 
as  it  stood  when  the  petition  was  filed.  A.  &  S.  R.  R.  v.  Carpenter,  14 
111.  190. 

310.  ACT  OF  1845— not  repealed  by  act  of  1852.    The  act  9f  1852 
being  intended  only  as  an  amendment  of  the  law  concerning  right  of 
way,  did  not  repeal  any  more  of  the  act  of  1845  than  was  repugnant 
thereto.    They  both  might  stand.    Taylor  v.  PettijoTin,  24  111.  312. 

311.  UNDER  DIFFERENT  ACTS.    A  corporation  was  authorized  to 
acquire  a  right  of  way  under  the  act  of  1852,  or  as  authorized  by  any 
other  act:    Held,  that  its  authority  embraced  the  act  of  1845,  or  such 
part  thereof  as  was  not  repealed  by  the  act  of  1852  amendatory  thereof. 
Ib. 

312.  UNDER  WHAT  LAW — election.  A  railway  company  instituted 
a  proceeding  under  the  act  of  1852  to  condemn  a  right  of  way,  and,  on 
appeal  from  the  award  of  the  commissioners  to  the  circuit  court,  asked 
to  amend  so  as  to  make  the  proceeding  under  the  act  of  1845:  Held,  not 
admissible.    The  petitioner  is  bound  by  his  election.    P.  P.  &  J.  R.  R. 
v.  mack,  58  111.  33. 

313.  REPEAL.    The  act  of  1845,  entitled  "right  of  way,"  was  not 
repealed  by  the  act  of  1852  on  the  same  subject,  except  in  so  far  as  it 
was  repugnant  to  the  latter  act.    The  general  law  of  1849,  relating  to 
railroads,  did  not  affect  the  act  of  1845.    P.  &  R.  I.  Ry.  v.  Warner,  61 
111.  52. 

314.  ACT  OF  1852 — how  far  repealed  by  new  constitution.    There 
is  enough  in  the  act  of  1852  not  abrogated  by  the  new  constitution  to 
enable  private  property  to  be  acquired  for  public  use.    A  jury  may  be 
had  on  appeal.    People  v.  McRoberts,  62  111.  38. 

315.  WHAT  LAW  GOVERNS.     A  railway  company  having  com- 
menced proceedings  for  condemnation  under  the  statute  of  1852  must 
adhere  to  it  throughout,  and  cannot  resort  to  other  statutes.    The 
rights  of  the  parties  must  be  controlled  by  the  act  under  which  the 
proceedings  are  begun.    P.  P.  &  J.  R.  R.  v.  Laurie,  63  111.  264. 

316.  CHANGE  IN  LAW— effect  on  proceeding.    The  state  has  the 
right  to  say  on  what  terms  it  will  allow  the  right  of  eminent  domain 
to  be  exercised,  so  long  as  there  remains  anything  to  be  done  by  the 
corporation  to  complete  the  condemnation  of  the  land.    S.  &  I.  £>'.  Ry 
v.  Hall,  67  111.  99. 

317  A  proceeding  to  condemn  land  for  a  right  of  way  under  the 
act  of  1852  was  brought,  but  before  a  trial  was  had  the  act  of  1872  had 
taken  effect,  and  the  damages  were  assessed  according  to  the  latter  act, 
which  expressly  repealed  all  conflicting  laws:  Held,  that  the  assess- 
ment was  properly  made  under  the  latter  act,  as  the  proceedings  were 
in  fieri  when  it  took  effect.  Ib. 

318 .  Where  land  was  taken  for  a  right  of  way  for  a  railroad,  and  a 
proceeding  to  fix  the  compensation  commenced  before  the  act  of  1872 
011  that  subject  went  into  effect:  Held,  that  the  compensation  should 


40  KAILROADS,  WAREHOUSES, 

be  ascertained  under  the  law  in  force  at  the  time  the  proceeding  was 
begun.    Emerson  v.  Western  Union  R.  JR.,  75  111.  176. 

319.  CONDEMNATION — strict  compliance.    A  proceeding  to  con- 
demn land  for  a  right  of  way  being  an  extraordinary  and  summary 
remedy,  the  party  exercising  the  power  must  strictly  observe  all 
the  requirements  of  the  statute  under  which  he  acts.    C.  &  A.  R.  R.  v. 
Smith,  78  111,  96. 

320.  WHAT  LAW  G9VERNS.    The  laws  in  force  at  the  time  a  city 
enters  upon  a  public  improvement  of  a  street  by  changing  its  grade 
will  fix  and  determine  the  rights  of  a  property  holder  to  damages,  and 
it  cannot  be  altered  by  subsequent  legislation.    City  of  Elgin  v. 
Eaton,  83  111.  535. 

321.  CONDEMNATION — strict  compliance.    To  divest  a  person  of 
his  property  by  proceedings  against  his  will,  there  must  be  a  strict 
compliance  with  all  of  the  provisions  of  the  law  which  are  made  for 
his  protection  and  benefit.    Those  provisions  must  be  regarded  as  in 
the  nature  of  conditions  precedent,  which  must  not  only  be  complied 
with  before  the  right  of  the  property  owner  is  disturbed,  but  the 
party  claiming  under  the   adverse   proceedings  must  affirmatively 
show  such  compliance.    Hyslop  v.  Finch,  99  111.  171. 

322.  The  rule  which  requires  great  strictness  in  a  statutory  pro- 
ceeding has  application  only  in  summary  and  exparte  cases  where  the 
person  whose  right  is  to  be  affected  is  not  a  party.    It  is  not  enough 
to  require  the  rigid  rules  of  strictness,  merely  that  the  proceeding  is 
a  statutory  one.    The  rule  does  not  apply  to  a  proceeding  to  condemn 
land  for  a  right  of  way  under  the  statute.    Bowman  v.  V.  &  C.  Ry. 
102  111.  472. 

323.  The  taking  of  private  property  under  the  eminent  domain- 
act  being  in  derogation  of  common  right,  the  grant  of  power  to  cor- 
porations for  its  exercise  will  be  strictly  construed.    Ch.  &  E.  III.  R. 
R.  v.  Wiltse,  116  111.  449. 

324.  ACT  OF  1852— parts  repealed.    %  9  of  the  act  of  1852,  which 
requires  the  execution  of  an  appeal  bond  on  taking  an  appeal  from 
the  award  of  the  commissioners  to  the  circuit  court,  and  §  12,  which 
permits  the  land  to  be  entered  upon  pending  the  appeal,  being  incon- 
sistent with  the  bill  of  rights,  are  repealed  by  the  constitution.    Peo- 
ple v.  McRoberts,  62  111.  38. 

325.  JURISDICTION — PETITION — PARTIES.  §  2.  That  in 
all  cases  where  the  right  to  take  private  property  for  public 
use,  without  the  owner's  consent,  or  the  right  to  construct  or 
maintain  any  public  road,  railroad,  plaukroad,  turnpike  road, 
canal  or  other  public  work  or  improvement,  or  which  may 
damage  property  not  actually  taken,  has  been  heretofore  or 
shall  hereafter  be  conferred  by  general  law  or  special  charter 
upon  any  corporate  or  municipal  authority,  public  body,  offi- 
cer or  agent,  person,  commissioner  or  corporation,  and  the 
compensation  to  be  paid  for  or- in  respect  of  the  property 
sought  to  be  appropriated  or  damaged  for  the  purposes  above 
mentioned  cannot  be  agreed  upon  by  the  parties  interested, 
or  in  case  the  owner  of  the  property  is  incapable  of  consent- 
ing, or  his  name  or  residence  is  unknown,  or  he  is  a  non- 
resident of  the  state,  it  shall  be  lawful  for  the  party  authorized 
to  take  or  damage  the  property  so  required,  or  to  construct, 
operate  and  maintain  any  public  road,  railroad,  plankroad, 


AND  EMINENT  DOMAIN.  41 

turnpike  road,  canal  or  other  public  work  or  improvement,  to 
apply  to  the  judge  of  the  circuit  or  county  court,  either  in 
vacation  or  term  time,  where  the  said  property  or  any  part 
thereof  is  situate,  by  filing  with  the  clerk  a  petition,  setting 
forth,  by  reference,  his  or  their  authority  in  the  premises, 
the  purpose  for  which  said  property  is  sought  to  be  taken  or 
damaged,  a  description  of  the  property,  the  names  of  all  per- 
sons interested  therein  as  owners  or  otherwise,  as  appearing 
of  record,  if  known,  or  if  not  known  stating  that  fact,  and 
praying  such  judge  to  cause  the  compensation  to  be  paid  to 
the  owner  to  be  assessed.  If  the  proceedings  seek  to  affect 
the  property  of  persons  under  guardianship,  the  guardians, 
or  conservators  of  persons  having  conservators,  shall  be  made 
parties  defendant,  and  if  of  married  women  their  husbands 
shall  also  be  made  parties.  Persons  interested,  whose  names 
are  unknown,  may  be  made  parties  defendant  by  the  descrip- 
tion of  the  unknown  owners ;  but  in  all  such  cases  an  affidavit 
shall  be  filed  by  or  on  behalf  of  the  petitioner,  setting  forth 
that  the  names  of  such  persons  are  unknown.  In  cases  where 
the  property  is  sought  to  be  taken  or  damaged  by  the  state 
for  the  purpose  of  establishing,  operating  or  maintaining  any 
state  house  or  state  charitable  or  other  state  institutions  or 
improvements,  the  petition  shall  be  signed  by  the  governor 
or  such  other  person  as  he  shall  direct,  or  as  shall  be  provi- 
ded by  law.  [B.  S.  1887,  p.  646,  §  2;  S.  &  0.,  p.  1042,  §  2; 
Cothran,  p.  646,  §2.] 

326 .  JUDICIAL  PROCEEDING.    The  right  of  the  state  to  take  pri- 
vate property  for  public  use,  cannot  be  asserted  by  a  mere  enactment. 
A  condemnation  by  a  judicial  proceeding  and  judgment  is  necessary. 
Cook  v.  South  Park  Corns.,  61  111.  115. 

327.  WHO  MAY  CONDEMN  AND  FOK  WHAT  PURPOSES— incorporated 
town,  for  a  street.    The  town  of  Mt.  Sterling  has  the  power  to  lay  out 
and  open  streets  and  to  condemn  land  therefor.    Curry  v.  Mt.  Sterling, 
15  111.  320;  Dunlap  v.  Mt.  Sterling,  14  111.  251. 

328 .  SAME — strict  construction.    The  rule  of  strict  construction  is 
applied  only  in  cases  of  ambiguil  y,  or  where  a  power  is  claimed  by 
implication.    Newhall  v.  Galena  &  Ch.  Union  R.  R.,  14  111.  273. 

329 .  SAME— length  of  lateral  railroad.    Where  the  legislature  has 
given  a  railway  company  power  to  build  lateral  roads  without  fixing 
any  limits  to  the  length  of  such  roads,  the  courts  will  not,  as  a  general 
rule,  fix  any  limits.    Ib. 

330.  POWER  TO  CONDEMN— /or  branch  or  lateral  road.    Where  a 
right  is  conferred  to  build  lateral  roads,  the  presumption  follows  that 
the  company  has  the  same  authority  to  obtain  the  right  of  way  of 
such  roads  as  is  conferred  for  the  main  line.    Ib. 

331.  SAME — extension,  applies  to  lateral  roads.    An  extension  of 
time  to  a  railway  company  which  has  the  right  to  build  lateral  routes, 
for  completing  its  road,  will  embrace  the  lateral  branches  as  well  as 
the  main  line.    Ib. 

332 .  RIGHT  TO  CONDEMN— forfeiture  of  power.    The  failure  of 
the  Illinois  Central  Railroad  company  to  locate  its  road  within  the 


42  KAILKOADS,  WAREHOUSES, 

limits  of  the  city  of  Chicago  by  the  first  day  of  January,  1852,  as 
required  by  its  charter,  did  not  work  a  forfeiture  of  its  right  to  con- 
demn lands  to  its  use  where  the  assent  of  the  city  to  such  location  was 
not  given  until  after  that  day  had  expired.  III.  C.  R.  R.  v.  Rucker 
14  111.  353. 

333.  WHO  MAY  ENFORCE  EMINENT  DOMAIN.    The  right  of  emi- 
nent domain  may  be  exercised  either  directly  by  the  agents  of  the 
government  or  through  the  medium  of  corporate  bodies.    Seek/nan 
v.  $.  &  8.  R.  R.,  3  Paige  45.    It  may  be  exercised  by  the  United  States, 
even  within  states,  within  its  constitutional  powers  and  purposes. 
Kohl  v.  United  Mates,  91  U.  S.  367;  Darlington  v.  U.  8.,  82  Pa.  St.  382. 
But  the  general  government  cannot  control  the  states  in  the  exercise 
of  this  power.    Boone  Co.  v.  Patterson,  98  U.  S.  403. 

334.  SAME — under  law  of  1849.    Eailway  companies  organized 
under  the  general  railroad  law  of  1849  cannot  condemn  lands  for  right 
of  way  until  they  have  obtained  an  act  of  the  legislature  approving 
of  the  route  and  termini  of  their  roads.    (tillinwater  v.  Miss.  & 
Atlantic  R.  R.,  13  111.  1. 

335.  SAME — under  act  of  1852.    %  19  of  the  general  railway  act  of 
1852  was  intended  to  reserve  power  in  the  legislature  to  fix  the  route 
and  termini  of  all  roads  organized  under  its  provisions,  and  not  to 
repeal  the  law  of  1845  relating  to  right  of  way.    The  sole  object  of 
that  section  was  to  continue  the  reservation  of  power  in  the  legisla- 
ture to  fix  the  route  and  termini  of  all  roads  before  the  corporations 
should  exercise  the  right  of  eminent  domain.    P.  &  R.  I.  R.  R.  v. 
Warner,  61  111.  52,  55. 

336.  SAME— power  not  exhausted  by  its  exercise.    The  power  to 
condemn  land  for  railroad  purposes  is  not  exhausted  by  an  apparent 
completion  of  the  road,  if  an  increase  of  business  shall  demand  other 
appendages  or  more  room  for  tracks.    C.  B.  &  Q.  R.  R.  v.  Wilson,  17 
111.  123,  127. 

337.  SAME— /or  workshops,  &c.    A  grant  of  power  to  a  railway 
company  to  construct  a  road  with  such  appendages  as  may  be  deemed 
necessary  for  the  convenient  use  of  the  same  will  authorize  it  to 
acquire  land  by  condemnation  for  workshops,  &c.,  these  being  neces- 
sary appendages.    Ib. 

338.  POWER  TO  CONDEMN— for  paint  shops,  &c.    The  Galena  & 
Chicago  Union  Railroad  Company,  under  its  charter,  has  the  power 
to  condemn  lands  for  depot  grounds  or  on  which  to  erect  a  paint  shop 
and  lumber  sheds  for  its  use.  Low  v.  <?.  &  Oh.  Union  R.  R.,  18  111.  324. 

339.  EIGHT  TO  CONSTRUCT  ROAD  IN  CITY.    Power  to  a  railway 
company  to  bring  its  road  to  a  city  and  acquire  property  within  it, 
also  carries  with  it  the  power  to  enter  the  city  and  acquire  right  of 
way  therein.    Moses  v.  P.  Ft.  W.  &  Ch.  R.  R.,  21  111.  516. 

340 .  POWER  OF  CITY— to  condemn  for  a  street.    The  city  of  Peoria, 
under  its  special  charter  of  1844,  as  amended  in  1855,  had  the  right  to 
extend  a  public  street,  and  have  the  benefits  and  damages  assessed. 
Peoria  v.  Kidder,  26  111.  351. 

341.  POWER  OF  RAILWAY  COMPANY — to  take  public  property '.    A 
railway  charter  authorizing  the  company  to  enter  upon,  take  posses- 
sion of,  and  use  all  and  singular  any  lands,  streams  and  materials  of 
any  kind  for  the  location  of  the  road,  depot,  <&c.,  and  for  the  construc- 
tion of  the  road,  contained  this  provision:  that  "all  such  lands,  mate- 
rials and  privileges  belonging  to  the  state  are  hereby  granted  to  said 
corporation  for  said  purposes:"  Held,  that  the  grant  did  not  include 
the  ground  connected  with  and  used  by  the  state  for  the  education  of 
the  blind,  although  adjoining  the  road  and  convenient  for  its  use. 
St.  L.  J.  &  C.  R.  R.  v.  Trustees,  &c.,  43  111.  303. 


AND  EMINENT  DOMAIN.  43 

342.  POWER  or  CITY— for  what  purposes.    A  municipal  corpora- 
tion has  no  power  to  condemn   private  property  for  purposes  not 
specifically  named  in  the  law,  and  which  is  not  within  the  proper  scope 
and  meaning-  of  the  delegated  authority.    E.  iSt.  Louis  v.  tit.  John, 
47  111.  463. 

343.  SAME— for  city  prison.    Power  given  a  city  in  its  charter  to 
"  take  private  property  for  opening,  altering  and  laying  out  any  street, 
lane,  avenue,  alley,  public  square,  or  other  public  grounds,"  does  not 
confer  the  power  to  condemn  property  on  which  to  erect  a  city 
prison.    J6. 

344 .  POWER  OF  COMPANY — to  use  a  street.    The  grant  in  a  charter 
of  a  railroad  company  to  run  its  road  through  a  town,  cannot  by  any 
reasonable  and  fair  intendment,  operate  as  a  grant  of  the  use  of  the 
streets,  or  either  of  them,  to  the  company.    St.  L.  V.  &  T.  H.  R.  R.  v. 
Haller,  82  111.  208. 

345.  SAME— by  legislative  recognition.    A  consolidated  railway 
may  acquire  property  within  the  city  of  Chicago  for  right  of  way,  by 
condemnation,  if  its  authority  to  construct  its  road  within  the  city 
and  its  existence  is  recognized  by  the  legislature  in  an  amendatory 
act,  although  the  companies  before  consolidation  had  no  such  power. 
McAuley  v.  C.  Ch.  &  Ind.  C.  Ry.,  83  111.  348. 

346 .  POWER  TO  CONDEMN — derived  from  the  state  alone.    The 
right  of  a  corporation  to  condemn  property  for  the  construction  and 
operation  of  a  horse  or  dummy  railway  in  the  streets  of  a  city,  is 
derived  solely  from  the  state  law;  and  the  consent  of  the  city  to  the 
construction  of  such  road  is  not  a  condition  precedent  to  proceedings 
to  condemn.    Metropolitan  City  Ry.  v.  Ch.  W.  Div.  Ry.,  87  111.  317. 

347.  SAME  -whether  termini  are  fixed.    A  railway  company  was 
authorized  by  its  charter  to  construct  its  road  "from  A  to  some  eligi- 
ble and  convenient  point  in  the  county  of  DuPage,  there  to  connect 
with  the  G.  &  C.  U.  Kailroad."    By  an  amendatory  act,  the  company 
was  authorized  to  construct  a  branch  road  from  its  main  line  from  A 
to  and  in  the  city  of  C  by  way  of  N :   Held,  that  under  either  of  these 
acts,  the  termini  of  the  road  were  so  far  fixed  as  to  authorize  the  com- 
pany to  condemn  land  for  its  use  under  the  act  of  1852,  which  was 
confined  in  its  operation  to  railroads,  the  termini  of  which  were  fixed 
by  the  legislature.    C.  B.  &  Q.  R.  R.  v.  Chamberlain,  84  111.  333. 

348.  FOR  BOULEVARD.    Under  §  12  of  the  act  of  1869,  in  relation 
to  parks,  &c.,  the  West  Park  Commissioners  have  the  power  to  con- 
demn land  for  a  boulevard  within  their  district,  to  connect  the  park 
and  boulevard  under  their  control  with  those  under  the  control  of  the 
South  Park  Commissioners.    Park  Corns,  v.  Western  Union  Tel.  Co.. 
103  111.  33. 

349 .  SECOND  TIME—  exhaus  tion  of  power.    The  law  does  not  require 
a  railway  company  to  acquire  by  condemnation  all  the  lands  necessary 
for  the  construction  and  operation  of  its  road,  at  the  same  time.    It 
may  increase  its  facilities  as  the  business  of  the  country  may  require. 
Fisher  v.  Ch.  &  S.  R.  R.,  104  111.  323. 

350.  So,  when  a  railway  company  had  a  side  track  for  many  years 
before,  connecting  its  main  track  with  a  public  warehouse  and  elevator 
in  a  town,  over  the  land  of  another,  but  without  having  the  right  of 
way  therefor,  except  by  the  mere  consent  or  license  of  the  owner,  it 
was  held  that  the  company  had  the  right  to  institute  proceedings  to 
condemn  the  land  over  which  such  branch  ran,  for  right  of  way.    Ib. 

351 .  FOR  TELEGRAPH.    Authority  is  given  by  statute  to  all  tele- 
graph companies  to  erect  poles  on  which  to  place  their  wires  on  all 
highways  or  public  roads,  by  first  obtaining  the  consent  in  writing  of 
the  county  board  of  the  county  in  which  the  highway  is  situated.   But 


44  KAILEOADS,  WAREHOUSES, 

this  permission  by  the  county  board  is  subject  to  the  constitutional 
inhibition  that  private  property  shall  not  be  taken  or  demanded  for 
public  use  without  just  compensation.  Board  of  Trade  Tel.  Co.  v. 
Barnett,  107  111.  507. 

352 .  POWER  OF  RAILWAY  TO  CONDEMN— fixing  route  and  termini. 
The  general  railroad  act  requires  the  persons  incorporating  a  company 
to  name  the  places  from  and  to  which  it  is  intended  to  construct  the 
proposed  railway,  but  no  limitation  is  laid  down  as  to  the  places  where 
switches,  turnouts,  or  side  tracks  shall  be  constructed.    South  Ch.  R. 
R.  v.  Dix,  109  111.  237. 

353.  SAME— for  branch  road.    Under  the  power  of  an  incorpo- 
rated railway  company  to  condemn  land  for  side  tracks,  turnouts  or 
switches,  it  has  no  right  to  take  land  for  the  construction  of  an  inde- 
pendent branch  road  to  subserve  only  new  private  interests.    Ib. 

354.  But  it  is  no  valid  objection  that  the  proposed  track  may  serve 
private  use,  if  in  addition  thereto,  it  is  one  also  necessary  for  the  suc- 
cessful and  convenient  operation  of  the  main  line  of  the  road.    Ib. 

355.  SAME — additional  tracks  in  city.    Where  a  railway  corpora- 
tion is  limited  by  village  or  town  authorities  to  thirty  feet  in  the 
centre  of  a  public  street  on  which  to  locate  its  main  track,  and  it 
becomes  necessary  to  construct  a  switch  or  side  track,  it  is  no  objec- 
tion to  the  condemnation  of  land  for  that  purpose,  that  it  runs  par- 
allel to  the  main  track,  there  not  being  room  enough  in  the  right 
of  way  along  the  street  for  the  side  track  in  addition  to  its  two 
main  tracks.    South  Ch.  R.  R.  v.  Dix,  109  111.  237. 

356.  SAME— for  switches,  etc.    A  railway  corporation  organized 
under  the  general  act  of  1872,  and  the  amendment  thereto  of  1877,  is 
expressly  empowered  to  condemn  land  for  the  purpose  of  switches, 
turnouts  and  side  tracks  when  necessary  for  the  successful  operation 
of  the  road.    Ib. 

357.  RIGHT  TO  BUILD  ROAD  IN  CITY.    A  grant  of  power  to  a  rail- 
way company  "  to  locate,  construct  and  maintain  and  operate  with 
horse  or  locomotive,  cars  from  the  city  of  Chicago  to  any  point  in  the 
town  of  Evanston,  a  railroad,"  &c.,  without  any  express  or  implied 
restrictions,  will  authorize  the  grantee,  so  far  as  the  state  is  con- 
cerned, to  locate  its  tracks  and  fix  its  Chicago  terminus  at  any  point 
in  the  city.    Ch.  &  N.  W.  Ry.v.  Ch.  &  E.  R.  R.,  112  111.  589. 

358.  STREETS.   The  power  of  an  incorporated  town  to  open  streets, 
extends  to  all  lands  within  the  corporation.    Curry  v.  Mt.  Sterling, 
15  111.  320. 

359.  Under  the  present  legislation  it  is  not  necessary,  as  a  condi- 
tion precedent  for  the  location  of  a  railroad  in  a  city,  when  not  over  a 
street,  or  to  the  power  to  condemn  private  property  within  the  city 
for  right  of  way,  that  an  ordinance  shall  be  passed  by  the  city  giving 
its  assent.    Ch.  &  W.  Ind.  R.  R.  v.  Dunbar,  100  111.  110. 

360.  CITY  OR  VILLAGE — special  assessments.    A  city  or  village 
may  make  and  collect  special  assessments  for  a  public  improvement 
before  acquiring  private  property  necessary  therefor,  by  condemna- 
tion.   Hyde  Park  v.  Borden,  94  111.  26. 

361.  POWER  OF  CITY — to  condemn  for  a  sewer — ordinance.    The 
statute  does  not  require  that  an  ordinance  for  the  construction  of  a 
sewer  by  a  city  or  village  shall  make  any  provision  for  acquiring  the 
right  of  way,  but  after  the  passage  of  an  ordinance  for  an  improve- 
ment which  requires  the  taking  or  damaging  of  private  property  the 
statute  requires  the  city  or  village  to  file  a  petition  to  ascertain  the 
compensation  to  be  paid  if  it  cannot  be  agreed  upon.    Hyde  Park  v. 
Borden,  94  111.  26. 


AND  EMINENT  DOMAIN.  45 

362.  POWER  OF  RAILWAY — to  condemn — de  facto   corporation. 
The  fact  that  a  railway  company  has  been  organized  under  a  valid 
charter,  and  is  shown  to  have  done  corporate  acts  under  it,  is  sufficient 
to  establish  a  prima  facie  right  to  take  private  property  under  the 
act;  and  this  prima  facie  right  cannot  properly  be  questioned  in  a 
collateral  proceeding.    That  must  be  done  by  quo  warranto.    Ch.  & 
N.  W.  Ry.  v.  Ch.  &  E.  R.  R.,  112  111.  589. 

363.  SAME—; -for  lateral  branches.    The  fact  that  the  building  of 
lateral  branch  roads  may  add  to  the  earnings  of  the  main  line  of  a 
railway  company,  or  increase  its  business,  will  not  authorize  such 
corporation  to  build  the  same  under  its  charter,  which  fails  to  so  pro- 
vide.   Ch.  &  E.  III.  R.  R.  v.  Wiltse,  116  111.  449. 

364.  POWER  OF  VILLAGE— laying  street — ordinance.   The  statute 
does  not  require  that  an  ordinance  to  establish  a  street  by  a  village 
shall  be  published.     Village  of  Byron  v.  Blount,  97  111.  62. 

365.  VALIDITY  OF  ORDINANCE.    Where  the  first  section  of  an 
ordinance  established  a  street  upon  the  defendant's  land,  and  the 
second  section  provided  that  contiguous  property  should  be  taxed 
one-fourth  of  the  cost  incurred  in  establishing  and  opening  the  same: 
Held,  on  application  to  condemn  the  land  for  the  street  and  fix  the 
compensation,  that  the  validity  of  the  first  section  was  not  involved. 
Village  of  Byron  v.  Blount,  97  111.  62. 

EXTENT  OF  LAND  TAKEN. 

366.  WIDTH  OF  RIGHT  OF  WAY.    The  right  of  way  for  a  railroad 
track  is  not  limited  to  any  given  width.    It  may  vary  in  different 
localities ;  but  obviously  a  railway  company  may  appropriate  and  use 
for  its  right  of  way  such  width  of  ground  as  may  be  reasonably  neces- 
sary for  the  economical  and  convenient  transaction  of  its  business. 
C.,  R.  I.  &  P.  R.  R.  v.  People,  4  Bradw.  468. 

367.  A  judgment  condemning  a  strip  of  land  120  feet  wide  for  a 
right  of  way  for  a  railroad,  will  not  be  reversed  because  the  land  con- 
demned exceeds  100  feet  in  width,  when  it  does  not  appear  from  the 
pleadings  or  the  record  that  the  additional  20  feet  was  not  necessary 
and  no  such  objection  was  raised  before  the  court  below  either  by 
demurrer  or  reasons  assigned  in  arrest  of  judgment.    Booker  v.  V.  & 
C.  Ry.,  101  111.  333. 

368 .  Under  our  statute  the  amount  of  land  which  a  railway  com- 
pany is  allowed  to  take  for  right  of  way  is  measured  by  the  necessi- 
ties of  the  case  only,  and  is  not  limited  to  a  strip  100  feet  wide.    When 
the  petition  states  the  amount  of  the  land  necessary  for  the  road,  and 
such  allegation  is  not  controverted,  no  question  can  arise  as  to 
whether  more  land  is  sought  to  be  taken  than  is  necessary.    Bowman 
v.  V.  &  C.  Ry.,  102  111.  459. 

369.  The  statute  does  not  designate  the  width  of  the  strip  of  land 
that  may  be  condemned  for  telegraph  purposes,  but  only  authorizes 
such  companies  to  acquire  such  an  amount  of  land  as  may  be  neces- 
sary; and  when  only  one  line  of  poles  is  specified  in  the  petition,  and 
the  evidence  does  not  show  that  a  half  of  a  rod  in  width  is  an 
unreasonable  amount  of  land,  the  judgment  condemning  that  much 
will  be  sustained,  and  will  be  construed  to  authorize  the  erection  of 
but  one  set  of  poles.    Lockie  v.  Mutual  Union  Tel.  Co.,  103  111.  401. 

370.  DEPOTS  AND  SIDE  TRACKS.    A  charter  giving  a  railroad 
company  a  right  to  acquire  a  strip  of  land  not  exceeding  100  feet  in 
width  has  reference  to  the  right  of  way  for  a  single  or  double  track, 
and  does  not  prohibit  it  from  acquiring  more  land  for  depot  grounds 
and  side  tracks  at  stations.    Carmody  v.  C.  &  A.  R.  R.,  Ill  111.  69. 


46  EAILROADS,  WAREHOUSES, 


371.  On  the  trial,  evidence  that  it  is  not  necessary  to  take  a  strip 
of  land  150  feet  wide  through  the  defendant's  land  is  not  admissible. 
That  is  not  a  question  for  the  jury  to  pass  upon.    DeBuol  v,  F.  &  M. 
Ry.,  Ill  111.  499. 

372.  AMOUNT   OF  LAND.    A  railway  company  cannot,  even  by 
making  compensation,  take  more  land  than  is  necessary  for  the  pur- 
pose of  its  road,  and  the  same  principle  applies  to  damaging  land.    0. 
&  M.  Ry.  v.  Wachter,  —  111.  — .    Filed  Jan.  20,  1888. 

OF  THE  EXPEDIENCY,  NECESSITY  AND  PROPRIETY. 

373.  NOT  A  JUDICIAL  INQUIRY.     Whether  private  property,  and 
if  so,  how  much  shall  be  taken  for  the  public  use,  is  a  matter  which, 
of  necessity,  rests  alone  in  the  discretion  of  the  legislature,  and  no 
appeal  from,  or  review  of  its  decision  can  be  had.    It  is  not  for  the 
court  to  say  whether  more  land  than  is  necessary  for  a  ferry  landing 
and  a  public  road  is  sought  to  be  condemned  or  not.   Mills  v.  St.  Clair 
Co.,  2  Gilm.  197, 238. 

374.  HIGHWAY.     Whether   the    public   interests    require,    and 
whether  the  fiscal  condition  of  the  county  will  justify  the  payment  of 
the  damages  awarded,  is  for  the  county  court  alone  to  decide.     On 
appeal  from  an  order  laying  out  a  public  road,  the  propriety  or  expe- 
diency of  the  road  is  not  involved.  Sangamon  Co.  v.  Brown,  13  111.  207. 

375.  STREET.    On  appeal  from  an  order  laying  out  a  street  the 
circuit  court  cannot  inquire  into  the  expediency  of  opening  the  street. 
That  is  left  solely  to  the  judgment  of  the  board  of  trustees.    Ciirryv. 
Mt.  Sterling,  15  111.  320;  Dunlap  v.  ML  Sterling,  14  111.  251. 

376.  WHO  MUST  DETERMINE.    The  net  essity  and  expediency  for 
the  exercise  of  the  right  to  condemn  private  property  in  making  public 
improvements,  either  for  the  benefit  of  all  the  people  of  the  state,  or  of 
a  particular  municipality,  must  be  determined  by  the  legislature.   Mere 
convenience  is  not  sufficient  to  justify  the  exercise  of  the  right  of 
eminent  domain.    Ch.,  Dan.  &  Vin.  R.  R.  v.  Smitli,  62  111.  275. 

377.  If  the  use  for  which  private  property  is  sought  to  be  taken  is 
a  public  use,  the  courts  cannot  inquire  into  the  necessity  or  propriety 
of  the  exercise  of  the  right  of  eminent  domain.    That  right  is  politi- 
cal, and  belongs  to  the  legislative  branch  of  the  government.    C.  R.  I. 
&  P.  R.  R.  v.  Town  of  Lake,  71  111.  333. 

378  WHO  MAY  JUDGE  OF  EXPEDIENCY.  The  legislature  is  the 
proper  body  to  determine  the  necessity  or  expediency  of  the  exercise 
of  the  power  of  eminent  domain,  and  the  extent  of  its  exercise.  Mills 
on  Em.  Domain, §11;  Pierce  on  Railroads,  146;  lEohrer,  on  Railroads, 
286,291;$£.  Louis  Co.  v.  Griswold,  58  Mo.  175;  Brooklyn  Park  v.  Arm- 
strong, 45  N.  Y.  234;  Secombe  v.  Milwaukee  R.  R.,  23  Wall.  108;  Weir  v. 
St.  Paul  R.  R.,  18  Minn.  155;  Tyler  v.  Beacher,  44  Vt.  648;  Bankhead 
v.  Brown,  25  Iowa  540;  Brayton  v.  City  of  Fall  River,  124  Mass.  95; 
Hold  v.  Somerville,  127  Mass.  408. 

379.  POWER  OF  COURT  OVER  QUESTION.    Where  the  power  of 
condemnation  is  delegated  to  corporate  bodies,  and  their  jurisdiction 
depends  upon  the  existence  of  a  necessity,  their  decision  is  not  con- 
clusive on  the  courts.    Milwaukee  &  St.  Paul  Ry.  v.  City  of  Jb'ari- 
bault,  23  Minn.  167.    In  some  of  the  states  the  constitution  requires  a 
jury  to  determine  the  necessity.    Paul  v.  Detroit,  32  Mich.  108-  M.  & 
St.  P.  Ry.  v.  Faribault,  23  Minn.  167;  R.  &  S.  R.  R.  v.  Davis,  43  N.  Y. 
137;  In  Re  N.  T.  Central  R.  R.,  66  N.  Y.  407. 

380.  Of  the  necessity  or  expediency  of  appropriating  private  prop- 
erty to  public  uses,  the  opinion  of  the  legislature,  or  of  the  corporate 


AND  EMINENT  DOMAIN.  47 

body  or  tribunal  upon  which  it  has  conferred  the  power  to  determine 
the  question,  is  conclusive  upon  the  courts.    Ib. 

381 .  If  the  use  for  which  private  property  is  proposed  to  be  taken 
is  public,  or  if  it  be  so  doubtful  that  the  court  cannot  pronounce  it 
not  to  be  such  as  to  justify  the  compulsory  taking,  the  decision 
of  the  legislature,  embodied  in  the  enactment,  giving  the  power,  that  a 
necessity  exists  for  taking  the  property,  is  final  and  conclusive.    Ib. 

382 .  DELEGATION  OF  POAVER  TO  DECIDE.    Where  the  case  is  such 
that  it  is  proper  to  delegate  to  individuals,  or  to  a  corporation  the 
power  to  appropriate  private  property,  it  is  also  competent  to  delegate 
the  authority  to  decide  upon  the  necessity  of  the  taking.    Ib. 

383 .  The  power  to  determine  in  any  case  whether  it  is  needful  to 
exercise  the  power  of  eminent  domain,  must  rest  with  the  state  itself; 
and  the  question  is  always  one  of  strict  political  character,  not  requir- 
ing any  hearing  upon  the  facts  or  any  judicial  determination.    Ib. 

384.  The  law  authorizing  the  condemnation  of  private  property 
for  railroad  purposes  is  limited  to  such  property  as  is  necessary  for 
the  purpose  in  question,  and  no  condemnation  proceedings  ..can  law- 
fully be  had  of  property  not  necessary  for  the  construction  or  use  of 
the  road.    But  this  necessity  need  not  be  made  certain  before  it  is 
lawful  to  proceed  with  the  condemnation.    Ch.  &  W.  Ind.  R.  R.  v. 
Dunbar,  100  111.  110. 

385 .  POWER  or  COURT  TO  DECIDE.    Where  the  description  of  the 
land  and  the  purpose  for  which  it  is  sought  to  be  taken  are  stated  in 
the  petition,  as  they  must  be  in  every  case,  whether  the  land  is  rea- 
sonably necessary  for  the  purpose  stated,  depends  mainly  upon  the 
facts  thus  stated  in  the  petition.    But  the  court,  in  passing  upon  this 
question,  as  it  must,  before  submitting  the  question  of  damages  or 
compensation  to  the  jury,  should  take  into  consideration  the  section 
of  the  country  and  the  particular  locality  in  which  the  improvement 
is  to  be  constructed: — whether  in  an  obscure  country  village,  or  in  a 
great  commercial  center;  and  acting  upon  its  own  knowledge  of  the 
commerce  and  business  necessities  of  the  country,  must  upon  the  facts 
stated  in  the  petition,  determine  this  question  for  itself.    The  jury 
impanneled  can  find  no  fact  except  what  is  just  compensation  to  the 
owner.    Smith  v.  Ch.  &  W.  Ind.  R.  R.,  105  111.  511.  / 

386.  No  EVIDENCE  HEARD  ON  QUESTION.    The  law  does  not  con- 
template that  when  the  petitioner  has  brought  itself  within  the  pro- 
visions of  the  statute,  the  right  of  condemnation  can  be  defeated  by 
simply  showing,  in  the  opinion  of  witnesses  who  have  no  interest  in 
or  connection  with  the  objects  of  the  proceeding,  that  the  land  sought 
to  be  condemned  is  not  necessary  for  the  purpose  stated.    Ib. 

387.  How  FAR  CORPORATION  MAY  DETERMINE.    Every  company 
seeking  to  condemn  land  for  a  public  improvement  must,  in  a  modi- 
fied degree,  be  permitted  to  judge  for  itself  as  to  the  amount  that  is 
necessary  for  such  purpose.    This  right  is  subject  to  the  constitutional 
and  statutory  restrictions,  and  to  the  further  limitation  that  the  courts 
are  clothed  with  ample  power  to  prevent  any  abuse  of  the  same.    Ib. 

388.  WHEN  COURT  MAY  INTERFERE.    If  the  court  can  see  from 
the  facts,  and  its  general  knowledge  of  the  locality  and  the  public 
wants,  that  the  land  sought  to  be  taken  is  manifestly  in  excess  of 
what  is  reasonably  necessary  for  the  purpose  stated  in  the  petition,  it 
will  be  fully  warranted  in  denying  the  application,  otherwise  not.  Ib. 

389.  To  deny  a  petition  of  a  railway  company  for  the  condemna- 
tion of  land  for  a  side  track,  it  should  appear  that  the  object  sought 
is  clearly  an  abuse  of  power,  or  a  taking  of  private  property  for  an 
object  not  required  for  the  convenient  operation  of  the  road.    South 
Ch.  R.  R.  v.  Dix,  109  111.  237. 


48  KAILROADS,  WAREHOUSES, 

390.  The  exercise  of  the  right  of  eminent  domain  is  subordinate 
to  all  constitutional  and  statutory  restrictions  on  the  subject,  and  to 
the  further  limitation  that  the  courts  which  are  authorized  to  enter 
tain  applications  for  its  exercise,  are  clothed  with  ample  power  to 
prevent  any  abuse  of  the  right.    Oh.  &  E.  III.  Ry  v.  Wiltse,  116  111.  449. 

391 .  The  question  of  the  necessity  of  the  exercise  of  the  right  of 
eminent  domain,  and  in  what  cases  it  may  be  exercised  within  consti- 
tutional restrictions,  is  legislative  aad  not  judicial;  and  when  this 
power  has  been  delegated  to  a  corporation,  its  exercise  within  the 
scope  and  for  the  uses  and  purposes  named  in  the  legislative  grant, 
will  not  be  a  proper  subject  for  judicial  interference  or  control,  unless 
to  prevent  a  clear  abuse  of  power.    Ch.  &  III.  E.  R.  R.  v.  Wiltse,  116 
111.  449. 

392.  INJUNCTION  —  condemnation  by  city.     A  court  of  equity 
will  not  enjoin  the  exercise  of  the  right  of  eminent  domain  by  a  city 
for  a  street,  it  being  a  political  question  of  expediency,  and  not  a 
judicial  one.    Chicago  v.  Wright,  69  111.  318. 

393.  EXERCISE  or  RIGHT  BY  CITIES— expediency.    The  authori- 
ties of  cities  and  villages  are  the  exclusive  judges  of  the  propriety  and 
necessity  of  the  widening  or  laying  out  of  streets,  and  unless  there  is 
manifest  injustice,  oppression  or  gross  abuse  of  power  in  their  action, 
a  court  of  equity  will  not  interfere  with  the  exercise  of  the  discretion 
vested  in  them.    Dunham  v.  Hyde  Park,  75  111.  371. 

394.  The  necessity  or  propriety  of  exercising  the  right  of  eminent 
domain  is  a  political  question  which  belongs  exclusively  to  the  legis- 
lature to  determine.     Hence,  the  legislature  may  properly  withhold 
from  municipal  authorities  the  power  to  condemn  land  for  public 
purposes  as  against  some  other  body  or  corporation  on  its  lands 
already  devoted  to  some  other  public  use.    It  may  confer  power  to 
use  the  right  upon  one  corporation  in  preference  to  another.    Hyde 
Park  v.  Oakwood  Cemetery  Assoc.,  119  111.  141. 

JUKISDICTION. 

395.  SUBJECT  MATTER — description  of  land  necessary  in  petition. 
To  give  the  court  jurisdiction  to  condemn  land  for  a  right  of  way,  the 
land  sought  to  be  taken  must  be  described  in  the  petition,  and  in  the 
several  orders,  where  it  should  properly  occur,  and  in  the  final  order. 
a.  &  Ch.  Union  R.  R.  v.  Pound,  22  111.  399. 

396.  SAME — how  conferred.  It  is  sufficient,  to  give  the  judge  juris- 
diction, that  the  facts  requiring  him  to  act  appear  in  the  petition,  or 
in  the  order  of  the  court,  or,  indeed,  in  any  part  of  the  record.    Ib. 

397.  How  SHOWN.    Where  application  for  the  appointment  of  com- 
missioners to  assess  damages  for  a  right  of  way  is  to  be  made  to  the 
county  judge,  on  the  absence  of  the  circuit  judge,  it  is  not  indis- 
pensable to  the  jurisdiction  of  the  county  judge  that  the  petition 
should  allege  the  absence  of  the  circuit  judge;   but  this  fact  must 
exist,  and  must  appear  in  some  part  of  the  proceeding.    Shute  v.  Ch. 
&  Mil.  R.  R.,  26  111.  436. 

398.  How  CONFERRED— petition—  appearance.    The  presentation 
of  a  petition  seeking  a  condemnation  of  land  for  a  plank  or  gravel 
road,  properly  describing  the  land  and  praying  for  the  appointment 
of  commissioners  to  assess  damages,  confers  on  the  court  jurisdiction 
of  the  subject  matter,  and  the  appearance  of  the  land  owners  that  of 
the  parties  defendant.    Skinner  v.  Lake  View  Avenue.  Co.,  57  111.  151. 

399.  SUPERIOR  COURT  OF  COOK  COUNTY.    The  superior  court  of 
Cook  county,  being  in  law  a  circuit  court,  may  lawfully  act  in  a  pro- 
ceeding authorized  to  be  brought  in  the  circuit  court.    Such  court  has 


AND  EMINENT  DOMAIN.  49 

jurisdiction  of  a  proceeding  to  condemn  land.    Ch.  &  N.  W.  Ry.  v.  Ch. 
&  E.  R.  R.,  112  111.  589. 

400.  COUNTY  COURT — no  equity  powers.    County  courts  have  no 
other  jurisdiction  in  proceedings  to  condemn  than  that  conferred  by 
the  eminent  domain  act.    They  have  no  general  chancery  jurisdic- 
tion.   McCormick  v.  W.  Ch.  Park  Comrs.,  118  111.  655. 

401.  Or   THE   PETITION — its    sufficiency.     The    statute   having 
determined  specifically  what  facts  must  appear  on  the  face  of  the 
petition,  the  court  or  judge  is  powerless  to  take  any  action  in  the 
premises  until  a  petition  is  filed  containing  the  statutory  require- 
ments, for  it  is  by  the  petition  that  jurisdiction  is  obtained  of  the 
subject  matter.    Smith  v.  Ch.  &  W.  Ind.  R.  R.,  105  111.  511. 

OF  THE  PETITION  AND  ITS  PRESENTATION. 

402.  IN  WHAT  NAME  FILED.  Where  the  statute  declares  that  "  the 
directors  may  present  a  petition,"  it  is  fully  complied  with  when  the 
petition  is  signed  by  the  corporation  by  its  attorney.    In  suits  by 
corporations  the  corporate  name  is  used,  and  not  the  name  of  the 
directors.    Skinner  v.  Lake  View  Avenue  Co.,  57  111.  151. 

403.  MUST  DESCRIBE  THE  LAND.    In  order  to  condemn  the  right 
of  way  of  another  de  facto  railway  company  for  even  a  qualified  or 
conjoint  use,  it  must  be  described  in  the  petition,  which  must  show  an 
inability  to  agree  upon  the  compensation.    The  describing  of  the 
tracts  of  land  over  which  such  prior  way  is  located,  making  no  refer- 
ence to  the  other  road  or  company,  will  not  authorize  the  condemna- 
tion of  such  prior  right  of  way.    Cin.,  Laf.  &  Ch.  R  R.  v.  Dan.  &  Vin. 
Ry,  75  111.  113. 

404.  As  SHOWING  INABILITY  TO  AGREE.    In  a  proceeding  by  a 
railway  company  under  the  act  of  1852,  the  petition  alleged  that  the 
company  "  has  not  been  able  to  acquire  the  title  to  said  several  tracts, 
&c.,  from  the  persons  interested  therein  by  voluntary  grant  or  other- 
wise:" Held,  a  sufficient  averment  that  the  title  to  the  land  sought  to 
be  condemned  could  not  be  acquired  by  purchase.    C.  B.  &  Q.  R.  R.  v. 
Chamberlain,  84  111.  333. 

405.  TIME  FOR  PRESENTING.    When  notice  is  given  under  the  act 
of  1852  of  an  application  on  a  certain  day  in  term  time  to  the  court  to 
appoint  commissioners,  the  petitioner  is  not  restricted  to  such  day, 
but  may  apply  on  a  subsequent  day  of  the  term.    Ib. 

406.  NEED  NOT  DESCRIBE  PROPERTY  NOT  SOUGHT.    The  petition 
need  not  describe  property  not  sought  to  be  taken  or  damaged.    Hyde 
Park  v.  Dunham,  85  111.  569. 

407.  A  statute  authorizing  the  appointment  of  commissioners  to 
ascertain  the  damages  which  the  owners  of  lands  taken  for  right  of 
way  have  sustained,  means  also  such  as  the  owners  will  sustain  there- 
after.   Therefore  a  petition  to  have  assessed  the  damages  the  owners 
will  sustain  is  not  invalid  in  failing  to  use  the  words  "  have  sus- 
tained."   Townsend  v.  C.  &  A.  R.  R.,  91  111.  545. 

408.  To  CONDEMN  FOR  A  STREET.    A  petition  by  a  village,  show- 
ing the  passage  of  an  ordinance  establishing  a  street  within  the  cor- 

E orate  limits,  and  alleging  an  inability  to  agree  with  the  owner  of  the 
ind  sought  as  to  his  compensation  and  damages,  and  praying  that  on 
a  final  hearing  the  just  compensation  to  be  paid  be  ascertained  accord- 
ing to  law,  and  that  when  the  same  was  paid  to  him  or  deposited 
according  to  law,  an  order  be  made  for  possession  of  the  land  con- 
demned, and  for  other  relief,  is  in  strict  conformity  to  the  law.     Vil- 
lage of  Byron  v.  Slount,  97  111.  62. 
—5 


50  RAILROADS,  WAREHOUSES, 

409.  SUFFICIENCY  OF  DESCRIPTION  OF  LAND.    There  is  no  rule  of 
law  that  requires  any  greater  degree  of  certainty  in  the  description  of 
land  sought  to  be  condemned  for  a  street  than  will  enable  a  surveyor 
to  find  and  locate  it  from  the  description  given.    Ib. 

410.  INABILITY  TO  AGREE.    An  allegation  in  a  petition  by  a  rail- 
road company  to  condemn  land  for  a  right  of  way,  that  the  petitioner 
"  has  not  been  able  to  acquire  the  title  nor  the  right  of  way  over  the 
land  by  purchase  or   by  voluntary  grant   from"   the   defendants, 
although  not  formal,  is  substantially  sufficient  under  the  statute,  as 
showing  an  inability  to  agree  as  to  the  compensation  to  be  paid. 
Booker  v.  V.  &  C.  Ry,  101  111.  333;  Bowman  v.  V.  &  C.  Ry,  102  111.  459. 

411.  REQUISITES  or.    Every  petition  properly  framed  must  con- 
tain all  of  the  statutory  requirements,  and  will  therefore,  of  necessity, 
show  in  every  case  where  such  petition  is  sufficient  to  confer  jurisdic- 
tion, the  authority  of  the  company  seeking  the  condemnation  to  take 
the  specific  land  sought  to  be  taken,  and  the  object  or  purpose  for 
which  it  is  required;  and  from  this  statement  of  facts  it  must  clearly 
appear  that  the  use  for  whic1!  the  land  is  sought  to  be  condemned  is  a 
public  one.    Smith  v.  Ch.  &  W.  Ind.  R.  R.,  105  111.  511. 

412.  STATEMENT  OF  THE  USES.    It  is  not  necessary  that  the  peti- 
tion should  state  the  petitioners'  purposes  fully  and  completely,  giving 
the  number  of  tracks  and  a  purpose  to  allow  other  companies  to  use 
the  same.    It  is  sufficient  for  the  petition  to  show  generally  that  the 
land  is  needed  for  railroad  purposes.    C.  R.  I.  &  P.  Ry  v.  Smith,  111 
111.  363. 

413.  As  SHOWING  PUBLIC  USE.    A  petition  to  condemn  a  strip  of 
land  150  feet  wide  over  defendant's  land,  alleged  that  petitioner  was 
a  corporation,  organized  and  existing  under  the  general  railroad  laws 
of  the  state,  from  F  to  G;  that  it  was  authorized  to  exercise  the  right 
of  eminent  domain,  and  that  in  accordance  with  the  purposes  of  its 
organization,  petitioner  had  surveyed,  staked  off  and  located  its  rail- 
way:   Held,  that  from  these  averments  it  was  apparent  the  proceed- 
ing was  to  condemn  private  property  for  a  public  purpose,  and  for  no 
other.    De  Buol  v.  Freeport  &  Miss.  River  Ry..  Ill  111.  499. 

414.  INABILITY  TO  AGREE.    When  the  petition  states  that  the 
petitioner  is  unable  to  agree  with  the  owner  as  to  the  compensation 
to  be  paid  for  the  right  of  way,  if  this  need  be  proved  it  may  be  shown 
by  the  defendant's  own  evidence.    Ib. 

415.  WIDTH  OF  RIGHT  OF  WAY — estoppel.    A  railway  company 
seeking  condemnation  for  a  right  of  way,  especially  if  it  proceeds 
under  the  act  incorporating  the  Mississippi  Railroad  Company,  is  not 
bound  to  take  and  pay  for  all  the  land  described  in  the  petition,  if 
less  is  needed  for  its  purposes.    It  is  not  estopped  by  the  allegations 
in  its  petition  as  to  the  width  of  the  right  of  way.    Peoria  &  R.  I. 
Ry.  v.  Bryant,  57  111.  473. 

416.  As  SHOWING  PURPOSE.    A  petition,  after  stating  that  the 
company  had  located  its  line  of  road  over  certain  tracts  described, 
averred  "that  a  part  of  each  of  said  lands  is  necessary  to  petitioner 
for  its  right  of  way,  side  tracks,  depot  and  depot  grounds,  freight 
yards,  shops  and  appurtenances  for  the  construction  and  operation  of 
its  said  line  of  road:"  Held,  a  sufficient  statement  of  the  purposes  for 
which  the  property  was  sought.    Seever  v.  Ch.  S.  F.  &  Cal.  Ry.,  —  111. 
— .    Filed  Nov.  11, 1887. 

417.  PRACTICE— defects  in  petition — how  reached.   If  the  petition 
is  defective  in  stating  the  purpose  of  the  taking  and  the  manner  in 
which  the  land  is  to  be  used,  the  proper  course  is  for  the  defendant  to 
demur.    Ib. 

418.  SHOWING  MANNER  OF  USE.    It  is  not  necessary  to  state  in 


AND  EMINENT  DOMAIN.  51 

the  petition  the  particular  manner  in  which  the  land  is  to  be  used. 
To  show  that,  the  petitioner  may  give  in  evidence  its  plans  and  speci- 
fications, and  the  defendant  may  have  them  produced  on  motion.  1 b. 

PLEADINGS  SUBSEQUENT  TO  PETITION. 

419.  STRIKING  OUT  PLEAS — benefit  under  answer.    The  correct- 
ness of  striking  a  defendant's  pleas  to  a  petition  from  the  files  will 
not  be  inquired  into,  where  the  defendant,  by  answer  subsequently 
filed,  has  had  the  full  benefit  of  all  the  matters  of  defense  presented 
by  his  pleas.    Metropolitan  City  Ry.  v.  CTi.  W.  Div.  Ry.,  87  111.  317. 

420.  No  ANSWER  OR  PLEAS  ALLOWED.    There  is  no  rule  of  law 
or  practice  authorizing  the  filing  of  an  answer  of  any  kind  to  a 
petition  for  the  condemnation  of  land,  and  it  is  not  the  proper  prac- 
tice to  allow  one  to  be  filed.    If  one  is  filed  it  may  be  stricken  out. 
Smith  v.  Ch.  &  W.  Ind.  R.  R.,  105  111.  511, 

421.  Under  the  eminent  domain  act  an  answer  or  plea  to  the 
petition  is  not  allowable,  and  if  a  special  plea  is  filed  there  is  no  error 
in  striking  it  from  the  files.    Johnson  v.  F.  &  M.  R.  Ry.,  Ill  111.  413. 

422.  There  being  no  rule  of  law  or  practice  authorizing  the  filing 
of  any  kind  of  answer  or  plea  to  the  petition,  there  is  no  error  in 
compelling  the  land  owner  to  proceed  with  the  trial  before  disposing 
of  a  plea  of  nul  tiel  corporation.    Henry  v.  Centralia  &  Chester  R. 
R.,  121  111.  264. 

OF  THE  PARTIES. 

423.  PLAINTIFF— /or  consequential  injury.    A  permanent  injury 
to  adjacent  property  by  the  construction  and  operation  of  a  railroad 
in  a  public  street,  dates  from  the  time  when  the  road  was  constructed 
and  first  put  in  operation,  and  any  right  of  action  therefor  is  vested  in 
the  then  owner  of  the  premises.    His  grantee  cannot  maintain  such 
action.    Ch.  &  E.  III.  R.  R.  v.  Loeb,  8  Bradw.  627. 

424.  HEIRS.    On  the  death  of  the  land  owner  his  title  descends  to 
his  heirs,  and  they  must  be  made  parties  to  a  proceeding  to  condemn, 
when  it  is  sought  to  pass  the  title,  in  order  to  bind  them.    P.  &  R.  I. 
R.  R.  v.  Rice,  75  111.  329. 

425.  DEATH  OF  OWNER  BEFORE  FINAL  JUDGMENT.    In  a  proceed- 
ing to  condemn  under  a  law  which  passed  the  fee  upon  payment  of 
the  damages,  the  land  owner  died  after  reversal  of  the  judgment:  Held, 
that  his  heirs  were  necessary  parties  before  taking  any  further  steps, 
and  that  it  was  error  to  dismiss  the  proceedings  on  the  administra- 
tor's motion.    Ib. 

426 .  The  remainde-man,  as  well  as  the  tenant  for  life  is  a  neces- 
sary party  defendant,  to  bind  him.    C.  &  A.  R.  R.  v.  Smith,  78  111.  96. 

427 .  Proceedings  against  a  former  owner,  who  has,  by  a  deed  duly 
recorded,  conveyed  the  land,  are  invalid  and  do  not  bind  the  true 
owner.    Smith  v.  C.  A.  &  St.  L.  R.  R.,  67  111.  191. 

428 .  TENANTS  IN  COMMON— -jurisdiction.   Where  the  land  belongs 
to  two  or  more  tenants  in  common,  it  is  not  essential  to  the  jurisdic- 
tion of  the  court  that  all  the  owners  shall  be  brought  into  court,  but 
the  court  has  power  to  hear  and  determine  the  case  as  to  those  before 
it.    Bowman  v.  V.  &  C.  Ry.,  102  111.  459. 

429.  If  the  right  of  any  one  in  any  sense  should  depend  upon  the 
disposition  of  the  case  as  to  the  others,  then  each  party  in  interest 
would  have  the  right  to  insist  on  all  the  parties  being  before  the  court 
before  proceeding  to  a  trial.    Ib. 

430.  NON-RESIDENT — right   to   remove  cause   to    United  States 


52  EAILEOADS,  WAEEHOUSES. 

court.  A  non-resident  defendant  may  remove  his  part  of  the  case  to 
the  United  States  court,  but  not  the  whole  case.  Chicago  v.  Hutchin- 
son,  11  Biss.  484. 

431 .  LESSEE.  Where  one  railroad  company  gives  another  one  a 
lease  of  a  portion  of  its  track  between  a  certain  place  and  its  terminus, 
but  reserves  its  franchise  and  the  right  to  exercise  its  corporate  pow- 
ers and  the  general  control  and  management  of  the  main  line,  and  of 
the  management,  use,  location  and  repair  of  the  same,  the  lessee  com- 
pany will  not  have  such  an  interest  in  the  line  of  the  road  leased,  as  to 
make  it  a  necessary  party  to  a  proceeding  by  another  company  to  con- 
demn a  right  of  way  across  the  track  of  the  lessor  company.  Engle- 
wood  Con.  Ry.  v.  Ch.  &  E.  III.  R.  R.,  117  111.  611. 

432.  PETITION  IN  VACATION — fixing  hearing — summons 
and  publication.  §  3.  If  such  petition  be  presented  to  a 
judge  in  vacation,  the  judge  shall  note  thereon  the  day  of 
presentation,  and  shall  also  note  thereon  the  day  when  he 
will  hear  the  same,  and  shall  order  the  issuance  of  summons 
to  each  resident  defendant,  and  the  publication  of  notice  as  to 
each  non-resident  defendant,  and  the  clerk  of  the  court  shall 
at  once  issue  the  summons  and  give  the  notices  accordingly. 
[E.  S.,  1887,  p.  646,  §  3;  S.  &  0.,  p.  1043,  §  3;  Cothran,  p.  647, 
§3.] 

433.  COURTS  ALWAYS  OPEN.    The  condemnation  of  private  prop- 
erty for  public  use  being  a  judicial  proceeding,  it  can  only  be  insti- 
tuted and  prosecuted  to  a  final  determination  in  either  the  circuit  or 
county  court,  and  hence,  whether  commenced  in  vacation  or  term 
time,  it  is  equally  a  proceeding  in  court.    Under  the  statute  these 
courts  are  always  open  for  proceedings  to  condemn  for  right  of  way. 
Bowman  v.  V.  &  C.  Ry,  102  111.  459. 

434.  SAME — alias  summons.     Under  the  statute  the  circuit  and 
county  courts  are  always  open  for  proceedings  to  condemn  for  right 
of  way,  and  when  the  summons  is  quashed  the  court  may  order  an 
alias  summons  returnable  in  vacation,  and  when  so  issued  and  served 
ten  days  before  the  return  day,  the  court  will  acquire  jurisdiction  to 
assess  the  compensation  to  be  paid.    Liebengut  v.  L.  N  A.  &  St.  L. 
Ry,  103  111.  431. 

435.  A  proceeding  to  condemn  land  for  public  use,  whether  insti- 
tuted in  term  time  or  in  vacation,  is  a  judicial  one,  and  the  judge 
before  whom  the  same  is  had  has  the  same  powers  in  either  case,  and 
may  grant  new  trials  to  correct  errors.    The  circuit  and  county  courts 
are  always  open  for  such  proceedings,  and  their  judicial  powers  are 
the  same  in  vacation  as  in  term  time.    Centralia  &  Chester  R.  R.  v. 
Rixman,  —  111.  — .    Filed  Jan.,  1887. 

436.  SEE  VICE — PUBLICATION.     §4.     Service  of  such  sum- 
mons and  publication  of  such  notice  shall  be  made  as  in  cases 
of  chancery.     [E.  S.,  1887,  p.  646,  §  4;  S.  &  C.,  p.  1043,  §  4; 
Cothran,  p.  648,  §  4.] 

OF  THE  NOTICE  UNDER  PRIOR  STATUTES. 

437.  OF  LAYING  OUT  STREET.    The  publication  of  the  ordinance 
authorizing  the  opening  of  a  new  street  was  all  the  notice  required. 
Curry  v.  Mt.  Sterling,  15  111.  320. 

438.  OF  CONDEMNATION— right  of  way.    Unless  the  act  author- 


AND  EMINENT  DOMAIN.  53 

izing  the  condemnation  of  property  for  right  of  way  so  directs,  a 
notice  of  the  proceeding  need  not  be  given.  Johnson  v.  Joliet  &  Ch. 
R.  R.,  23  111.  202. 

439.  APPEARANCE.    If  the  parties  whose  lands  are  soiight  to  be 
condemned  appear  at  the  hearing  before  the  commissioners,  a  notice 
to  them  of  the  time  and  place  of  the  hearing  is  unnecessary.  Skinner 
v.  Lake  View  Avenue  Co.,  57  111.  151. 

440.  RECORD  MUST  SHOW.   Where  the  commissioners  are  required 
to  view  the  land  sought  to  be  condemned  and  hear  evidence  as  to  the 
damage,  it  is  indispensable  to  their  action  that  they  give  personal 
notice  of  the  time  and  place  of  meeting  to  assess  damages;  and  a 
recital  in  their  report  that  they  have  given  notice  is  not  sufficient.    It 
should  appear  in  the  report  or  order  approving  the  same.    Ib. 

441.  Or  TIME  or  FILING  REPORT.    Under  §  13  of  the  act  of  1859 
the  court  has  the  power  to  modify  the  report,  and  for  such  purpose 
evidence  may  be  heard.    Therefore  the  land  owner  should  have  notice 
of  the  time  of  the  filing  of  the  report.    Ib. 

442.  JURISDICTIONAL.    A  party  must  have  notice  of  the  proceed- 
ing before  he  can  be  deprived  of  his  property  by  condemnation, 
whether  it  is  under  the  act  of  1845  or  1852.    The  notice  is  indispensa- 
ble to  the  validity  of  the  condemnation.    P.  &  R.  I.  Ry  v.  Warner, 
61  111.  52. 

443.  MUST  BE  TO  THE  OWNER.     The   Belleville  &  Illinoistown 
Eailroad  company,  chartered  in  1852,  gave  notice  of  proceedings  to 
condemn  land  for  right  of  way  to  a  former  owner  of  a  life  estate 
therein,  but  who  had  previously  conveyed  his  title,  and  whose  deed 
was  recorded:    Held,  that  the  proceedings  were  invalid  for  the  reason 
they  were  not  instituted  against  the  owner.    Smith  v.  C.,  A.  &  St.  L. 
R.  R.,  67  111.  191. 

444.  ON   TENANT  FOR  LIFE] — not  binding  on  remainder-man. 
The  charter  of  a  railway  company  required  notice  by  publication  to 
the  owner  or  occupier  or  unknown  owners  of  land  sought  to  be  con- 
demned, of  the  application  to  appoint  commissioners,  and  the  com- 
pany published  such  notice  as  to  one  who  had  held  a  life  estate  only, 
but  who  was  dead,  not  naming  the  remainder-man:    Held,  that  the 
subsequent  proceedings  of  condemnation  were  not  binding  upon  the 
latter,  and  that  he  might  recover  the  land  taken  by  ejectment.    Ch.. 
A.  &  St.  L.  R.  R.  v.  Smith,  78  111.  96. 

445.  WHEN  MUST  NAME  OWNER.    A  charter  authorizing  the  con- 
demnation of  land  for  right  of  way,  upon  giving  notice  by  publication 
for  thirty  days,  "to  the  owners  or  occupiers  or  unknown  owners,  as 
the  case  may  be,  of  the  intention  to  apply  for  the  appointment  of 
commissioners,"  &c.,  requires  that  the  notice  shall  be  given  specifically 
to  the  owner  or  occupier,  if  known — if  not,  to  unknown  owners  by 
that  designation.    A  general  notice  in  such  case  will  not  be  sufficient. 
Ib. 

446.  How  TO  BE  GIVEN.    Where  a  notice  is  required  by  statute, 
and  the  mode  of  service  is  not  specified,  it  must  be  personal;  and  usu- 
ally, where  notice  is  required  by  publication,  it  must  be  directed  to  the 
person  by  name  who  is  required  to  be  notified.    Ib. 

447.  WHEN  ESSENTIAL.    It  is  a  rule  of  general  application  that  a 
party  cannot  be  deprived  of  his  rights  without  having  notice  and  an 
opportunity  of  being  heard.     When  the  proceeding  is  summary,  and 
the  notice  only  constructive,  the  courts  will  never  abridge  the  right  to 
notice  or  substitute  another  for  it.    Ib. 

448.  PROOF    OF    PUBLICATION— certificate   of  publisher.     Pub- 
lisher's certificate  of  the  publication  of  notice  required  by  law  to  be 


54  KAILBOADS,  WAREHOUSES, 

published,  after  he  has  ceased  to  be  the  publisher,  is  not  admissible  as 
evidence  of  the  publication.    Smith  v.  C.,  A.  &  St.  L.  R.  R.,  67  111.  191. 

449.  Service  of  summons  on  land-owner  less  than  ten  days  before 
the  day  set  for  hearing  the  petition  will  give  the  court  jurisdiction  of 
the  person  of  the  defendant,  and  the  court  may  continue  the  case  to  a 
subsequent  day.    Bowman  v.  V.  &  C.  Ry.,  102  111.  472. 

450.  HIGHWAYS — notice — certificate.    Where  the  notice  given  to 
the  land-owner  by  the  commissioners  of  highways  of  the  presentation 
of  their  certificate  that  they  are  about  to  establish  a  road,  fixed  the 
time  on  March  11,  while  the  justice's  docket  entries  in  the  case  were 
dated  March  13,  it  was  held  that  it  might  be  shown  by  other  evidence 
that  the  certificate  was  presented  on  the  first  named  day  and  the  jury 
selected  on  that  day.    Nankins  v.  Galloway,  88  111.  155. 

451.  FIXING    TIME    OF    HEARING  —  continuance — jurisdiction. 
Where  the  justice  fixes  the  time  for  the  assessment  of  damages  within 
ten  days  from  the  filing  of  the  certificate  with  him,  he  may  continue 
the  case  to  a  later  day,  and  beyond  the  ten  days,  if  for  any  cause 
notice  has  not  been  served  on  all  the  parties  in  time,  and  in  such 
case  he  will  not  lose  jurisdiction,  and  there  is  no  error  in  taking  the 
statement  in  his  docket,  and  in  the  final  order  establishing  the  road, 
to  show  such  fact.    Ib. 

452.  CERTIFICATE— nature  of  petition— description.    The  statute 
does  not  require  the  certificate  of  the  commissioners  of  highways  filed 
with  the  justice  to  give  a  minute  description  by  courses  and  distances 
of  the  whole  road,  or  even  the  portion  for  which  damages  are  claimed, 
but   a  general  description  of  the  portion   for  which   damages  are 
claimed  will  suffice.    McManus  v.  McDonough,  107  111.  95. 

453.  HEARING.    §  5.    Causes  may  be  heard  by  such  judges 
in  vacation  as  well  as  in  term  time,  but  no  cause  shall  be 
heard  earlier  than  ten  days  after  service  upon  defendant,  or 
upon  due  publication  against  non-residents. 

454.  PETITION    INCLUDING    SEVERAL    TRACTS — separate 
assessment.     Any  number  of  separate  parcels  of  property, 
situate  in  the  same  county,  may  be  included  in  one  petition, 
and  the  compensation  for  each  shall  be  assessed  separately, 
by  the  same  or  different  juries,  as  the  court  or  judge  may 
direct. 

455.  AMENDMENTS.     Amendments  to  the  petition,  or  to 
any  paper  or  record  in  the  cause,  may  be  permitted  whenever 
necessary  to  a  fair  trial  and  final  determination  of  the  ques- 
tions involved. 

456.  NEW  PARTIES — PRACTICE— process  to  execute  judg- 
ments, &c.     Should  it  become  necessary  at  any  stage  of  the 
proceedings  to  bring  a  new  party  before  the  court  or  judge, 
the  court  or  judge  shall  have  the  power  to  make  such  rule  or 
order  in  relation  thereto  as  may  be  deemed  reasonable  and 
proper;  and  shall  also  have  power  to  make  all  necessary  rules 
and  orders  for  notice  to  parties  of  the  pendency  of  the  pro- 
ceeding, and  to  issue  all  process  necessary  to  the  execution 
of  orders   and  judgments  as  they  may  be  entered.     [K.  S. 
1887,  p.  646,  §  5;  S.  &  C.,  p.  1044,  §  5;  Cothran,  p.  648,  §  5.] 


AND  EMINENT  DOMAIN.  55 

457.  HEARING  IN  TERM.    The  petition  though  filed  in  vacation 
may  be  tried  in  term  time,  and  a  motion  to  dismiss  and  a  challenge  of 
the  array  of  jurors  on  the  ground  the  petition  was  filed  in  vacation  is 
properly  disallowed.    Johnson  v.  F.  &  Miss.  River  Ry.,  Ill  111.  413. 
See  also  Bowman  v.  V.  &  C.  Ry.,  102  111.  468;  Harlam  v.  V.  G.  &  8. 
Win.  JR.  R.,  64  111.  353. 

458 .  Where  no  hearing  was  asked  or  fixed  for  a  day  in  vacation, 
but  the  cause  was  commenced  at  the  March  term  of  the  county  court, 
and  continued  to  the  April  term,  and  process  served  for  that  term: 
Held,  that  the  court  had  jurisdiction  to  try  the  case  at  the  April  term. 
DeBuol  v.F.&M.R.  R.  R.,  Ill  111.  499. 

459 .  EIGHT  TO  DISMISS.    The  petitioner  in  a  proceeding  to  con- 
demn land  for  right  of  way,  even  after  possession  wrongfully  taken 
of  the  land,  and  after  the  filing  of  a  cross  petition  for  damage  to  the 
part  not  taken,  has  the  right  to  dismiss  the  proceeding  and  it  is  error 
to  refuse  that  right.    Ch.,  St.  L.  &  Western  R.  R.  v  Gates,  —  111  — . 
Filed  March  23, 1887. 

460.  SEVERAL  TRACTS — assessment  as  to  each  tract.    Where  the 
petition  embraces  several  tracts  of  land,  and  avers  that  they  are  owned 
by  several  persons  named,  in  the  absence  of  anything  to  the  contrary 
in  the  record,  it  will  be  presumed  that  the  several  persons  named  hold 
as  tenants  in  common,  so  that  it  will  not  be  necessary  for  the  jury  to 
make  a  separate  assessment  upon  each  tract.    But  when  several  tracts 
belonging  to  different  owners  are  embraced  in  one  petition,  doubtless 
it  will  be  the  duty  of  the  jury  to  make  a  separate  assessment  for  each 
tract.    Graymlle  &  Mattoon  R.  R.  v.  Christy,  92  111.  337. 

461.  SEPARATE  ASSESSMENT.   Where  several  tracts  of  land  belong- 
ing to  different  persons  are  included  in  the  same  petition,  the  statute 
provides  that  the  compensation  for  each  shall  be  assessed  separately 
by  the  same  or  different  juries,  as  the  court  or  judge  shall  direct,  and 
the  same  principle  may  be  extended  to  cases  where  different  persons 
have  several  and  distinct  interests  in  the  same  tract.    Bowman  v.  V. 
&  C.  Ry.,  102  111.  459. 

462.  In  a  proceeding  against  several  land  owners,  each  separate 
owner  may  have  his  damages  assessed  before  a  separate  jury,  and  is 
entitled  to  a  separate  appeal  from  the  judgment  on  the  verdict.  John- 
son v.  F.  &  Miss.  Ry.,  116  111.  521. 

463.  Under  the  statute  the  compensation  may  be  assessed  by  the 
same  or  different  juries  as  to  two  or  more  separate  tracks  of  land  des- 
cribed in  the  same  petition,  although  belonging  to  different  owners. 
This  is  a  matter  within  the  discretion  of  the  trial  judge,  and  unless 
such  discretion  is  shown  to  have  been  abused,  it  will  not  be  interfered 
with.    Concordia  Gem.  Assoc.  v.  Minn.  &  N.   W.  R.  R.,  121  111.  199; 

-111.—.    Filed  June,  1887. 

464.  AMENDMENTS — in  vacation  making  new  parties.    Whether 
the  proceeding  has  been  brought  in  term  time  or  in  vacation,  there  is 
no  impropriety  in  allowing  such  amendments  to  be  made  as  are  by  law 
allowable  as  of  course  and  as  a  matter  of  right,  whether  with  or  with- 
out notice,  when  the  adverse  party  is  not  taken  by  surprise,  or  other- 
wise prejudiced.    There  is  no  error  in  allowing  an  amendment  of  the 
petition  in  vacation,  making  new  parties,  as  part  owners  of  the  land, 
and  ordering  summons  and  publication  as  to  them.    Bowman  v.  V. 
&  C.  Ry.,  102  111.  459. 

465.  It  is  the  duty  of  courts  to  allow  amendments,  when  it  is  neces- 
sary to  bring  all  parties  before  the  court,  who  may  have  an  interest  in 
the  premises  sought  to  betaken.    Ch.  St.  L.  &  Western  R.  R.  v.  Gates. 

466.  But  where  the  case  is  called  for  trial,  the  court  will  not  delay 
the  hearing  for  the  purpose  of  bringing  in  other  parties  not  shown  to 


56  EAILBOADS,  WAREHOUSES, 

have  any  interest  in  the  premises.  Amendments  are  not  allowed  as  a 
matter  of  course  on  the  eve  of  a  trial  on  the  motion  of  a  party,  except 
for  good  cause  shown.  Ib. 

467.  If  the  jury  fail  to  find  any  damages  for  the  diversion  of  a 
stream,  the  court  may  direct  them  orally,  on  the  return  of  their  report 
to  find  some  sum  as  such  damages  under  §  9  of  the  act,  and  this  is  not 
a  violation  of  the  statute  requiring  the  court  to  instruct  in  writing. 
Kiernan  v.  Ch.,  S.  F.  &  Gal.  Ry.,  —  111.  — .  Filed  Nov.  11,  1887. 

OF  THE  JUKY. 

468.  JURY  IN  VACATION — listing — venire.  §  6.  In  cases 
fixed  for  hearing  of  petition  in  vacation,  it  shall  be  the  duty 
of  the  clerk  of  the  court  in  whose  office  the  petition  is  filed, 
at  the  time  of  issuing  summons  or  making  publication,  to 
write  the  names  of  each  of  sixty-four  disinterested  freeholders 
of  the  county  on  sixty-four  slips  of  paper,  and,  in  pres- 
ence of  two  disinterested  freeholders,  cause  to  be  selected 
from  said  sixty-four  names  twelve  of  said  persons  to  serve  as 
jurors — such  selection  to  be  made  by  lot  and  without  choice 
or  discrimination;  and  the  said  clerk  shall  thereupon  issue 
venire,  directed  to  the  sheriff  of  his  county,  commanding 
him  to  summon  the  twelve  persons  so  selected  as  jurors  to 
appear  at  the  court  house  in  said  county,  and  at  time  to  be 
named  in  the  venire.  [K  S.  1887,  p.  646,  §  6;  S.  &  C.,  p. 
1044,  §  6;  Cothran,  p.  648,  §  6.] 

469.  CONSTRUCTION  OF  STATUTE.    The  words,  "in  cases  fixed  for 
hearing  in  vacation,"  should  be  construed  with  reference  to  the  fact 
that  a  hearing  is  fixed,  and  a  day  appointed  for  the  hearing,  when 
such  is  the  case,  so  that  it  may  read,  "in  cases  fixed  in  vacation  for 
hearing.    Haslam  v.  Galena  &  S.  Wis.  R.  R.,  64  111.  353. 

470.  Array  chosen  from  part  of  the  county  greatly  interested  in 
the  improvement,  one  being  a  subscriber  and  two  not  freeholders: 
Held,  not  fairly  chosen.    Ib. 

471.  EVIDENCE  OF  SELECTION.    When  the  final  order  laying  out  a 
road  has  the  positive  statement  that  the  commissioners'  certificate 
was  presented  to  the  J.  P.  on  a  certain  day,  and  a  jury  was  selected 
by  them  and  the  land  owners  from  the  list  presented  by  the  J.  P.,  it 
will  afford  evidence  of  the  facts.    Hankins  v.  Calloway,  88  111.  155. 

472.  MODE  OF  SELECTING  SECOND  ONE — re-writing  names  of  by 
clerk.    When  a  second  jury  is  called  for,  the  clerk  need  not  re-write 
the  names  of  the  persons  selected  who  were  not  drawn,  but  he  may 
write  the  names  of  enough  to  make  up  sixty-four.    Kiernan  v.  Ch., 
Santa  Fe  &  Cal.  Ry.    Filed  Nov.  11,  1887. 

SELECTION  OF  COMMISSIONERS. 

UNDER  PRIOR  STATUTES. 

473.  MANDAMUS — to  compel  appointment.    When  a  county  judge 
improperly  refuses  to  make  an  order  appointing  appraisers  to  assess 
damages  under  the  act  of  1852,  concerning  right  of  way,  the  supreme 
court  will  compel  him  to  do  so  by  mandamus.    /.  C.  R.  R.  v.  Rucker, 
14  111.  353. 

474.  On  application  to  a  judge  for  the  appointment  of  commis- 


AND  EMINENT  DOMAIN.  57 

sioners  to  condemn  lands,  he  is  compelled  to  act  if  such  a  case  is  made 
as  the  statute  requires.  He  is  rather  a  ministerial  than  a  judicial 
officer,  having  no  discretion  in  the  matter.  C.,  B.  &  Q.  R.  R.  v.  Wil- 
son, 17  111.  123. 

475.  APPOINTED  BUT  ONCE.    Appraisers  for  the  condemnation  of 
land  for  the  use  of  the  Galena  &  Chicago  Union  Eailroad  company 
receive  but  one  appointment,  and  when  once  sworn  under  it,  their 
proceedings  will  be  valid,  although  they  may  be  directed  to  make  a 
re-appraisal.    Low  v.  G.  &  Ch.  Union  R.  B.,  18  111.  324. 

476.  WHO  MAY  APPOINT.    An  act  which  provides  for  the  appoint- 
ment of  commissioners  to  assess  damages  for  a  right  of  way  by  the 
senior  county  commissioner,  in  the  absence  of  the  circuit  judge,  may 
be  executed  by  the  judges  of  the  county  court,  they  being  the  suc- 
cessors of  the  county  commissioners'  court.    In  such  case,  before  the 
county  judge  can  act,  it  must  appear  that  the  circuit  judge  is  absent 
from  the  county.    Shute  v.  Ch.  &  Mil.  R.  R.,  26  111.  436. 

477.  MANDAMUS — to  compel  appointment.    The  act  for  the  loca- 
tion and  maintenance  of  a  park  being  held  valid,  this  court  awarded 
a  mandamus  requiring  the  circuit  court  to  appoint  three  commis- 
sioners to  assess  the  damages  for  the  land  sought  to  be  condemned  for 
the  park.    People  v.  Williams,  51  111.  57. 

478.  EVIDENCE  or  APPLICATION  FOR  APPOINTMENT— recital  in 
record.    A  recital  in  the  record  of  the  appointment  of  commissioners 
that,  "  it  appearing  to  the  court  that  the  said  defendants  have  had  due 
notice  of  the  filing  of  said  petition  and  of  this  application,"  is  suf- 
ficient to  show  that  the  application  was  made  in  conformity  with  the 
notice,  and  at  the  time  stated  in  such  notice.    C.,  B.  &  Q.  R.  R.  v. 
Chamberlain,  84  111.  333,  341. 

479.  FIXING  TIME  OF  MEETING.    The  act  of  1852  provides  that 
the  court  appointing  commissioners  shall  fix  the  time  and  place  of 
their  first  meeting,  but  it  is  not  explicitly  required  that  this  shall  be 
done  in   the  order  appointing  them.     An  omission  to  fix  the  time 
is  a  mere  error  not  available  in  a  collateral  proceeding.    Ib. 

480.  Where  the  order  appointing  commissioners  left  the  day  of 
their  meeting  blank,  but  the  copy  of  the  order  annexed  to  their  report 
designated  the  day  of  the  first  meeting,  and  the  report  showed  that 
the  meeting  was  held  on  that  day  and  the  appearance  of  the  parties: 
Held,  as  tending  to  show  that  the  day  of  the  meeting  was  fixed.    Ib. 

481.  APPOINTMENT — under  the  act  of  1852 — mandamus.    After 
the  adoption  of  the  constitution  of  1870,  and  before  any  legislation 
thereunder  in  respect  to  the  condemnation  of  private  property  for 
public   use,  the   supreme   court  awarded  a  peremptory  mandamus 
requiring  a  circuit  judge  to  appoint  commissioners  to  estimate  the 
compensation  for  right  of  way,  as  provided  by  the  act  of  1852.   People 
v.  McRoberts,  62  111.  38. 

482.  JURY — CHALLENGES— filling  panel.  §7.  The  peti- 
tioner, and  every  party  interested  in  the  ascertaining  of  com- 
pensation, shall  have  the  same  right  of  challenge  of  jurors 
as  in  other  civil  cases  in  the  circuit  courts.  If  the  panel  be 
not  full  by  reason  of  non-attendance,  or  be  exhausted  by 
challenges,  the  judge  hearing  such  petition  shall  designate 
by  name  the  necessary  number  of  persons,  of  proper  qualifi- 
cation, and  the  clerk  or  justice  shall  issue  another  venire, 
returnable  instanter,  and  until  the  jury  be  full.  [R.  S., 
1887,  p.  647,  §  7;  S.  &  C.,  p.  1044,  §  7;  Cothran,  p.  648,  §  7.] 


58  AND  EMINENT  DOMAIN. 

483 .  CHALLENGE — as  to  each  defendant.    On  a  proceeding  to 
condemn  lots  for  a  sewer,  all  the  objections  are  properly  submitted  to 
one  jury,  each  objector  having  a  separate  right  of  challenge;  and,  if 
after  having  exercised  his  right,  new  jurors  are  introduced  into  the 
panel  by  challenges  from  others,  or  by  the  petitioner,  he  will  have  the 
right  to  challenge  again,  if  he  has  not  before  exhausted  his  rights. 
Fitzpatrick  v.  Joliet,  87  111.  58. 

484.  COMPETENCY.    Commissioners  appointed  to  assess  damages 
are  quasi  jurors,  and  like  them  should  be  free  from  interest  or  legal 
disability.    R.  I.  &  A.  R.  R.  v.  Lynch,  23  111.  645. 

485.  REPORT  OF  DISQUALIFIED  PERSONS — a  nullity.    The  report 
of  persons  disqualified  by  statute  is  a  nullity.    Dagyy  v.  Green,  12 
Ind.  303.    The  fact  of  the  commissioners  being  disinterested  freehold- 
ers must  appear  in  the  record  of  appointment,  this  being  jurisdic- 
tional.     Judson  v.  Bridgeport,  25  Conn.  426;  State  v.  Jersey  City,  25 
N.  J.  (Law)  309. 

486.  JURY — oath  of.     §  8.     When  the  jury  shall  have 
been  so  selected,  the  court  shall  cause  the  following  oath  to 
be  administered  to  said  jury: 

You  and  each  of  y_ou  do  solemnly  swear  that  you  will  well  and  truly  ascertain  and 
report  just  compensation  to  the  owner  (and  each  owner)  of  the  property  which  it  is  sought 
to  take  or  damage  in  this  case,  and  to  each  person  therein  interested,  according  to  the 
facts  in  the  case,  as  the  same  may  be  made  to  appear  by  the  evidence,  and  that  you  will 
truly  report  such  compensation  so  ascertained:  so  help  you  God. 

[E.  S.,  1887,  p.  647,  §  8;  S.  &  C.,  p.  1045,  §  8;  Cothran,  p. 
648,  §  8.] 

487 .  SWEARING  OF  JURY— waiver  of  objection.    An  objection  that 
the  jury  were  not  sworn  in  the  manner  directed  by  the  statute,  comes 
too  late  after  verdict.    R.,  R.  I.  &  St.  L.  R.  R.  v.  McKinley,  64  111.  338. 

488.  SAME — error  in,  does  not  affect  jurisdiction.  An  oath  admin- 
istered to  the  jury  by  a  justice  of  the  peace  on  a  proceeding  to  establish 
a  road  in  the  form  prescribed  by  the  statute,  with  the  addition  of  the 
words,  "  if  any,"  as  to  the  damages,  does  not  render  the  proceeding 
void.    The  error,  if  any,  does  not  go  to  the  jurisdiction.    HanMns  v. 
Calloway,  88  111.  155. 

489.  JURY— VIEW  OF  PREMISES— verdict — benefits.     §  9. 
Said  jury  shall,  at  the  request  of  either  party,  go  upon  the 
land  sought  to  be  taken  or  damaged,  in  person,  and  examine 
the   same,  and  after  hearing  the  proof   offered  make   their 
report  in  writing,  and  the  same  shall  be  subject  to  amend- 
ment by  the  jury,  under  the  direction  of  the  court  or  the 
judge,  as  the  case  may  be,  so  as  to  clearly  set  forth  and  show 
the  compensation  ascertained  to  each  person  thereto  entitled, 
and  the  said  verdict  shall  thereupon  be  recorded:     Provided, 
that  no  benefits  or  advantages  which  may  accrue  to  lands  or 
property  affected  shall  be  set  off  against  or  deducted  from 
such  compensation,  in  any  case.     [R.  S.  1887,  p.  647,  §  9; 
S,  &  0.,  p.  1045,  §  9;  Cothran,  p.  649,  §  9.] 

VIEW  OF  PREMISES. 

490.  CHANGE  OF  VENUE— bar  of  the  right.     When  a  company 
seeking  to  condemn  land  for  right  of  way  procured  the  venue  of  the 
cause  to  be  changed  to  another  county:    Held,  that  it  thereby  barred 


AND  EMINENT  DOMAIN.  59 

itself  of  the  right  under  the  statute  of  1872  to  have  the  jury  personally 
view  the  premises.    R.,  R.  I.  &  St.  L,  R.  R.  v.  Coppinger.  66  ill.  510. 

491.  TIME  FOB  VIEWING.    The  statute  makes  it  the  duty  of  the 
jury  to  examine  in  person  the  land  sought  to  be  taken  or  damaged; 
but  at  what  time  in  the  progress  of  the  trial  they  shall  go,  is  left  to 
the  discretion  of  the  court.    Galena  &  S.  Wis.  R.  R.  v.  Haslam,  73 
111.  494. 

492.  OBSERVATION,  AS  EVIDENCE.    The  jury  have  the  right  to 
view  the  premises  and  draw  their  own  conclusions  from  such  observa- 
tion as  well  as  from  the  testimony  given  in  the  case.    Mitchell  v.  III. 
&  St.  L.  R.  R.  &  Coal  Co.,  85  111.  566. 

493.  AFTER  ARGUMENT  CLOSED.    The  statute,  giving  the  right  to 
have  the  jury  go  on  the  land  sought  to  be  taken  or  damaged  and 
examine  the  same,  is  imperative,  but  fixes  no  time  when  it  shall  be 
allowed;  and  it  is  error  to  refuse  a  motion  to  have  the  jury  view  the 

E remises,  even  after  the  evidence  has  been  closed  and  the  arguments 
card,  but  before  the  instructions  are  given.    Kankakee  &  Seneca  R. 
R.  v.  Straut,  102  111.  666. 

494.  The  right  of  either  party  to  have  the  jury  go  upon  and  exam- 
ine the  premises,  may  be  exercised  at  any  stage  of  the  case  before  the 
court  gives  its  instructions,  and  it  is  error  to  deny  this  right.    Ib. 

495.  When  the  jury  at  the  request  of  both  parties  view  the  prem- 
ises, and  no  other  evidence  is  offered,  every  presumption  will  be  indul- 
ged in  favor  of  the  correctness  of  the  verdict.    In  such  case  it  cannot 
be  known  the  damages  assessed  are  excessive.    P.  &  F.  Ry.  v.  Bar- 
num,  107  111.  160. 

496.  Where  the  jury  view  the  premises,  and  no  other  evidence  is 
given,  the  instructions  given  can  only  be  considered  as  abstract  propo- 
sitions of  law.    But  were  this  not  so,  there  being  no  evidence  pre- 
served it  cannot  be  known  whether  any  of  the  instructions  were 
calculated  to  mislead  on  the  facts  of  the  case.    Ib. 

HEAKING,  PEACTICE  AND  EVIDENCE. 

NECESSITY  OF  CLAIMING  DAMAGES  UNDER  PRIOR  STATUTES. 

497.  LAYING  ROAD — waiver.    A  claim  for  damages  for  the  loca- 
tion of  a  public  road  is  not  to  be  presumed,  but  must  be  expressly 
made,  and  at  the  proper  time,  so  that  if  the  state  or  county  thinks  the 
benefits  will  not  equal  the  costs,  it  may  abandon  the  project  or  locate 
the  road  elsewhere.    Ferris  v.  Ward,  4  Gilm.  499. 

498.  The  land  owner  must  object  to  the  location  of  a  road  over 
his  land  in  the  first  instance,  or  he  will  be  concluded  from  insisting  on 
damages.    He  must  claim  damages  at  the  proper  time,  so  that  the 
county  may  abandon  the  project  if  the  damages  are  considered  too 
great.    Sangamon  Co.  v.  Brown,  13  111.  207. 

499.  STREET — tvaiver  of  claim.    If  a  party  having  notice  by  pub- 
lication of  the  ordinance  suffers  a  street  to  be  opened  through  his 
land  without  objection,  he  cannot  afterwards  interpose  a  claim  for 
compensation.    Curry  v.  Mt.  Sterling,  15  111.  320. 

500.  WAIVER  OF  RIGHT— delay  to  claim.    Where  a  railway  com- 
pany entered  upon  land  and  built  its  road  without  procuring  a  right 
of  way  or  license  from  the  owner,  and  occupied  it  for  twelve  years, 
and  then  instituted  proceedings  to  condemn:  Held,  that  the  owner 
was  not  estopped  from  claiming  damages.    He  can  be  barred  only  by 
the  statute  of  limitations,  and  riot  by  a  mere  non-claim  for  a  period 
short  of  that  fixed  by  the  statute  of  limitations.    T.  P.  &  W.  Ry.  v. 
Darst,  61  111.  231. 


60  EAILEOADS,  WAREHOUSES, 

501 .  PUBLIC  ROAD — damages  to  be  adjusted.    §  56  of  the  town- 
ship organization  law  of  1861  imperatively  required  the  commissioners 
of  highways  to  adjust  the  question  of  damages  to  the  owners  of  land 
before  opening  a  road  across  it.    Com.  of  Highways  v.  Durham.  43 
111.  86. 

502 .  The  question  of  damages  must  be  satisfactorily  adjusted  by 
release  or  assessment,  or  in  some  other  recognized  mode,  before  the 
owner  can  be  dispossessed  of  his  property     He  is  not  required  to 
claim  as  under  prior  laws.    On  failure  to  agree  the  damages  must  be 
assessed.    Ib. 

503.  An  effort  on  the  part  of  the  commissioners  of  highways  to 
agree  with  the  land  owners  as  to  their  compensation  is  not  indispen- 
sable to  a  proceeding  to  have  the  same  assessed.    Hall  v.  People,  57 
111.  307. 

504.  To  excuse  a  failure  to  condemn  land  for  a  highway,  and  the 
assessment  of  the  owner's  compensation,  on  the  ground  of  there  being 
no  claim  for  the  same,  his  release  in  writing  should  be  filed  in  the 
town  clerk's  office  and  recorded  with  the  order  laying  out  the  road. 
Hyslop  v.  Finch,  99  111.  171. 

505.  ESTOPPEL — to  deny  title  to  land.    Where  town  authorities, 
in  a  proceeding  to  condemn  land  for  a  street,  describe  the  land  as  A's, 
they  cannot  afterwards  deny  his  right  to  be  heard  on  the  question  of 
damages  on  account  of  his  want  of  title.    Mt.  Sterling  v.  Givens,  17 
111.  255. 

506.  PROOF  OF  TITLE — when  not  necessary.     Where  the  petition 
to  condemn  a  tract  of  land  describes  it  as  the  property  of  the  defend- 
ant, and  the  report  of  the  commissioners  shows  it  to  be  his  land,  and  it 
appears  he  was  in  possession  when  the  proceeding  was  begun,  he 
will  not  be  required  to  establish  his  title  by  proof  in  order  to  contest 
the  amount  of  the  compensation.    The  rule  is  different  when  his  title 
is  not  admitted,  and  he  applies  for  the  assessment  against  the  corpo- 
ration.   P.  &  R.  1.  Ry.  v.  Bryant,  57  111.  473. 

507.  The  petition  must  state  the  names  of  the  owners  of  the  land 
sought  to  be  condemned,  and  those  interested  therein,  and  notice 
must  be  given  them;  and  the  company  will  be  estopped  from  proving 
before  the  commissioners  that  the  party  alleged  to  be  the  owner  has 
not  title.    The  commissioners  cannot  consider  the  question  of  title, 
but  only  the  extent  of  the  damages.    P.,  P.  &  J.  R.  R.  v.  Laurie,  63 
111.  264. 

508.  On  the  assessment  of  damages  for  right  of  way  under  the  act 
of  1852,  the  land  owner  is  not  bound  to  prove  title  to  entitle  him  to 
compensation.    By  instituting  the  proceeding  against  the  defendant, 
the  petitioner  admits  his  ownership.    St.  L.  &  IS.  ti.  Ry.  v.  Teters,  68 
111.  144. 

509.  The  filing  of  a  petition  by  a  railway  company  to  condemn 
"  whatever  property,  rights,  interest  or  privileges  "  a  defendant  corpo- 
ration may  have  in  certain  streets  by  contract  with  the  city,  admits 
the  legality  of  that  contract,  at  least  for  the  purposes  of  the  proceed- 
ing, and  estops  the  petitioner  from  insisting  that  the  defendant  has  no 
interest  in  that  which  is  sought  to  be  condemned.    Metropolitan  City 
Ry.  v.  Ch.  W.  Div.  Ry.  87  111.  317. 

510.  A  proceeding  to  condemn  land  as  the  property  of  the  defend- 
ant, and  asking  to  have  his  compensation  assessed,  is  an  admission  of 
his  title  and  right  to  compensation.    Ch.  &  Iowa  R.  R.  v.  Hopkins, 
90  111.  316. 

511.  Where  park  commissioners  proceed  to  condemn  land  for  park 
purposes  as  the  property  of  a  person  named  as  owner  in  the  petition, 
they  will   be  estopped  from  afterwards   disputing  his  title,  in  the 


AND  EMINENT  DOMAIN.  61 

absence  of  any  adverse  claimant  of  the  condemnation  money,  and 
more  especially  so  where  such  alleged  owner's  title  is  not  put  in  issue 
in  the  suit  to  recover  such  money.  South  Park  Corns,  v.  Todd,  112 
111.  379. 

512.  CORPORATE  EXISTKI&E — de  facto  corporation.    In  a  pro- 
ceeding by  a  railway  company  to  condemn  land  for  the  use  of  its 
road,  it  is  sufficient  that  it  is  de  facto  a  corporate  body.    McAuley  v. 
Columbus,  Ch.  &  Ind.  Central  Ry.,  83  111.  348. 

513.  A  proceeding  by  a  railway  company  to  condemn  land  for  a 
right  of  way  is  a  collateral  proceeding,  so  far  as  it  concerns  the  ques- 
tion of  the  corporate  existence  of  the  company,  and  it  is  sufficient  to 
show  it  is  a  de  facto  corporation .    P.  &  P.  U.  Ry.  v.  P.  &  F.  Ry.,  105 
111.  110. 

514.  By  going  to  trial  on  the  merits,  the  defendant  waives  the 
necessity  of  the  preliminary  proof  of  the  corporate  existence  of  the 
petitioner.     Ward  v.  M.  &  N.  W.  R.  R.,  119  111.  287. 

515.  Proof  of  the  corporate  existence  of  the  railway  company,  if 
required  to  be  made,  is  addressed  to  the  court,  and  not  to  the  jury 
called  to  assess  the  damages.    The  right  to  exercise  the  right  of  emi- 
nent domain  is  a  question  exclusively  for  the  court  to  determine. 
The  defendant  may  raise  the  question  of  the  petitioner's  right  with- 
out plea  or  answer.    Ib. 

516.  Requiring  plans  an  admission  of  de  facto  corporation.    Ib. 

517.  TRIAL  OF  OTHER  ISSUES — evidence  working  no  injury.    The 
land-owner,  not  being  injured  by  proof  of  issues  tendered  by  co-ten- 
ants, questioning  the  right  to  condemn,  he  having  insisted  upon  the 
same  thing,  cannot  have  a  reversal  on  account  of  the  admission  of 
such  evidence.    McAuley  v.  Columbus,  Ch.  &  Ind.  Central  Ry.,  83  111. 
348. 

518.  ISSUES — compensation  only.    The  jury  impanneled  can  find 
no  fact,  except  what  is  just  compensation  to  the  owner.   Smith  v.  Ch. 
&  W.  Ind.  R.  R.,  105  111.  511,  520. 

519.  If  the  truth  of  any  of  the  averments  of  the  petition  may 
depend  upon  the  existence  or  non-existence  of  facts  not  appearing 
upon  the  face  of  the  petition,  and  hence  their  truth  or  falsity  is  open 
to  extrinsic  proof,  such  proof  may  be  made  on  the  part  of  the  land- 
owner, as  well  without  an  answer  as  with  it,  for  the  inquiry  in  such 
case  will  be  directed  to  the  truth  or  falsity  of  the  petition.    Ib. 

520.  DEFENCES — Railroad  track  over  another  track.    In  a  pro- 
ceeding to  condemn. the  right  of  way  for  a  railroad  across  the  track 
and  right  of  way  of  another  company,  questions  as  to  the  sufficiency 
of  a  city  ordinance  in  respect  to  the  right  of  the  petitioner,  and  as  to 
the  right  to  cross  the  track  of  the  defendant  company,  and  as  to 
injury  to  the  franchise  of  the  latter,  and  as  to  the  proposed  crossing 
being  a  continuing  nuisance  to  the  defendant  from  the  operation  of 
the  new  road,  are  all  of  a  character,  if  available  at  all,  such  as  may  be 
interposed  at  law  in  the  condemnation  proceeding.    L.  S.  &  M.  /S.  Ry. 
v.  Ch.  &  W.  Ind.  R.  R.,  96  111.  125. 

521.  EVIDENCE — inability  to  agree.    Where,  from  the  contest  and 
the  acts  of  the  parties,  it  is  evident  that  they  could  not  agree  as  to 
the  compensation  for  the  land  sought  for  a  right  of  way,  the  judg- 
ment will  not  be  reversed  because  no  direct  testimony  was  offered  to 
show  such  inability  to  agree.     Ward  v.  M.  &  N.  W.  R.  R.,  119  111.  287. 

522.  RIGHT  TO  OPEN  AND  CLOSE.    The  party  against  whom  judg- 
ment would  be  given  as  to  a  particular  issue,  whether  affirmative  or 
negative,  in  case  no  proof  is  offered  on  either  side,  has  the  burden  of 
proof,  and  the  right  to  open  and  close  the  case,  whether  plaintiff  or 


62  RAILKOADS,  WAEEHOUSES, 

defendant.  Therefore  the  party  seeking  to  condemn  on  the  question 
of  the  assessment  of  the  damages  to  be  paid,  has  the  right  to  open  and 
close.  McReynolds  v.  B,  &  O.  River  Ry.,  106  111.  152. 

523.  CROSS  PETITION — demurrer.    The  fact  that  a  cross  petition 
avers  only  the  evidence  of  title  and  not  any  actual  present  title  in  the 
party  filing  it,  and  is  uncertain  in  the  description  of  his  interest  in  the 
property,  may  afford  ground  of  demurrer,  but  not  any  for  dismissing 
the  same.    Johnson  v.  F.  &  M.  R.  Ry.,  116  111.  521. 

524.  WIDTH  OF  THE  WAY.    The  question  whether  it  is  necessary 
for  the  petitioner  to  take  a  strip  of  land  one  hundred  and  fifty  feet 
wide  through  the  defendant's  land,  is  not  one  for  the  jury  to  pass  upon. 
The  only  question  for  the  jury  is  the  amount  of  the  damages  to  be 
assessed.    De  Buol  v.  F.  &  M.  R.  Ry.,  Ill  111.  499. 

525.  ORDER  OF  EVIDENCE — cross  petition.     When  real  estate  is 
sought  to  be  condemned  for  widening  a  street,  and  the  petition  only 
describes  the  property  to  be  taken,  and  a  cross  petition  is  filed  to 
recover  compensation  for  damages  to  parts  of  the  property  not  sought 
to  be  taken,  it  is  error  to  require  the  plaintiff  to  enter  upon  proof  as 
to  the  question  of  damages  to  the  property  described  in  the  cross  peti- 
tion before  the  land  owner  has  given  any  testimony  in  support  of  hi? 
claim.    Hyde  Park  v.  Dunham,  85  111.  569. 

526.  PROOF  OF  ORDINANCE— laying  street.    On  petition  to  con- 
demn land  for  a  street  established  by  ordinance,  if  the  land  owner  in 
his  answer  shall  deny  that  the  ordinance  was  duly  passed,  the  peti- 
tioner will  be  required  to  prove  that  every  step  necessary  to  make  it  a 
valid  ordinance  has  been  taken.    Otherwise,  no  such  proof  is  required. 
Village  of  Byron  v.  Blount,  97  111.  62. 

527.  EVIDENCE  BY  TENANT  IN  COMMON — available  to  all.    In  a 
proceeding  to  condemn  land  owned  by  tenants  in  common,  the  appear- 
ance and  testimony  adduced  by  one  of  them  will  be  for  the  benefit  of 
all  the  others.    C.,  B.  &  Q.  R.  R.  v.  Chamberlain,  84  111.  333. 

528.  PROOF  OF  CORPORATE  EXISTENCE.    In  a  proceeding  to  assess 
the  owner's  compensation  for  land  taken  for  right  of  way  and  dam- 
ages to  lands  not  taken,  it  is  not  necessary  to  show  that  the  capital 
stock  of  the  railway  company  plaintiff  has  all  been  subscribed,  or  in 
other  words,  to  show  it  is  a  corporation  de  jure.    It  is  sufficient  to 
show  it  is  a  corporation  de  facto.    Henry  v.  Centralia  &  Chester  R. 
R.,  121  111.  264. 

529.  Evidence  showing   the  petitioner  is  a  de  facto  corporation 
should  not  go  to  the  jury  called  to  estimate  the  compensation  and 
damages;  but  if  it  is  sufficient  to  satisfy  the  court  of  the  petitioner's 
right  to  proceed,  the  error  in  letting  it  go  to  the  jury  is  so  small  and 
harmless  as  not  to  require  a  reversal.    76. 

OF  THE  REPORT  OR  VERDICT. 

530.  RECITAL  OF  APPOINTMENT.     Che  act  requiring  a  copy  of 
the  appointment  of  the  appraisers  to  be  recited  in  the  report  will  be 
complied  with  if  the  appointment  is  attached  to  the  report  and  is 
made  a  part  of  it.    Low  v.  G.  &  Ch.  U.  R.  R.,  18  111.  324. 

531.  SHOWING  BASIS — allowance  for  fencing.    Under  the  act  of 
1855,  in  relation  to  fencing  by  railway  companies,  the  record  of  the 
proceeding  to  condemn  land  for  right  of  way  should  show  the  amount 
allowed  for  fencing  as  a  component  part  of  the  damages.    This  should 
be  done  as  a  protection  of  the  company  against  any  future  claim  to 
fence  the  right  of  way.    R.  I.  &  A.  R.  R.  v.  Lynch,  23  111.  645. 

532.  The  finding  of  the  jury  should  show  on  what  basis  the  dam- 
ages are  assessed  in  order  that  the  record  may  show  thereafter  the 


AND  EMINENT  DOMAIN.  63 

rights  of  the  parties,  as  to  who  shall  keep  up  the  fences.    St.  L.,  J.  & 
Ch.  R.  R.  v.  Mitchell,  47  111.  165. 

533.  The  verdict  in  a  proceeding  under  the  act  of  1852  should  find 
the  compensation  for  the  land  taken  and  the  damages  separately. 
Hayes  v.  O.  D.  &  F.  R.  V.  R.  R.,  54  111.  373. 

534.  The  cost  of  erecting  and  maintaining  fences  along  the  line  of 
the  proposed  road  is  a  proper  element  of  damages  to  be  considered  by 
the  jury,  yet  if  no  evidence  is  offered  on  the  subject  the  jury  will  not 
be  required  to  find  in  their  verdict  anything  in  respect  to  it.    P.  &  R. 
I.  R.  R.  v.  Sirkett,  62  111.  332. 

535 .  If  the  amount  assessed  is  to  cover  damages  to  other  parts  of 
the  property  not  taken,  all  this  should  be  distinctly  stated  in  the  order. 
Bloomington  v.  Miller,  84  111.  621. 

536.  CERTAINTY  IN.    A  verdict  in  a  proceeding  to  condemn  land 
for  right  of  way  by  a  railway  company,  which  finds  that  the  land 
owner  "  is  entitled  as  compensation  to  the  sum  of  $420,  and  as  dam- 
ages the  sum  of  $411.25,  a  total  sum  of  $831.25,"  is  sufficiently  certain. 
III.  W.  Extension  R.  R.  v.  Mayrand,  93  111.  591. 

537.  FINDING  SEPARATELY  AS  TO  EACH  TRACT — waiver.    Where 
both  parties  on  the  trial  treat  the  several  tracts  over  which  the  right 
of  way  is  sought  as  one  farm  in  the  examination  of  witnesses  and  in 
the  instructions,  and  the  compensation   and  damages  are  fixed  as 
upon  one  tract,  the  objection  that  the  finding  should  have  been  as  to 
each  tract  separately,  comes  too  late  on  appeal,  or  even  on  motion  for 
a  new  trial.    Kankakee  &  III.  River  R.  R.  v.  Chester,  62  111.  235. 

538.  DESCRIPTION  OF  LAND — sufficiency.    The  petition  described 
the  land  over  which  a  strip  was  sought  as  lot  1  of  n.  w.  qr.,  &c.    The 
part  sought  was  described  as  "  a  strip  of  land    *    *    *    200  feet  wide 
for  a  distance  of  1,151  feet  across  the  tract  (fifthly)  above  described, 
commencing,"  &c.    The  verdict  and  judgment  described  the  land  as 
"the  land  taken  for  right  of  way  across"  lot  1,  as  described  in  the 
petition:  Held,  that  the  description  of  the  land  taken  was  sufficiently 
certain  by  reference  to  the  petition.    Suever  v.  Ch.,  S.  F.  &  Cal.  Ry. 
—  111.  — .    Filed  Nov.  11, 1887. 

539.  GROSS  SUM  FOR  COMPENSATION  AND  DAMAGES— presumption. 
In  the  absence  of  a  bill  of  exceptions  showing  the  evidence,  a  verdict 
awarding  a  gross  sum  for  compensation  for  the  land  taken,  and  dam- 
ages to  the  part  not  taken,  will  not  be  held  erroneous.    It  will  be  pre- 
sumed the  evidence  justified  such  a  finding.    Ib. 

540.  FINDING,  WHEN  SEPARATELY  AND  WHEN  IN  GROSS.    Where 
the  petition  shows  that  each  tract  belongs  to  separate  owners,  the  ver- 
dict should  find  the  compensation  and  damages  as  to  each  defendant 
separately ;  but  if  it  avers  that  a  particular  tract  is  owned  by  several 
persons,  they  will  be  presumed  to  be  tenants  in  common,  in  the 
absence  of  proof  to  the  contrary,  and  the  verdict  may  find  a  gross 
amount  to  be  paid  to  the  defendants.    Ib.  • 

NEW  TRIAL. 

541.  ON  THE  EVIDENCE.    The  verdict  of  the  jury,  unless  mani- 
festly against  the  weight  of  the  evidence,  will  not  be  disturbed.    III. 
&  Wis.  R.  R.  v.  Von  Horn,  18  111.  257. 

542.  Where  the  question  of  damages  is  fairly  submitted,  no  benefit 
being  likely  to  result  to  the  owner  of  the  land,  and  the  company  not 
being  absolutely   bound   to  erect  and   maintain  a  fence,  etc.,  the 
supreme  court  will  not  disturb  the  verdict.    T.  &P.  R.  R.  v.  Unsicker, 
22  111.  221. 


64  BAILROADS,  WAREHOUSES, 

543.  The  verdict  will  not  be  set  aside  merely  because  the  damages 
are  large,  when  the  land-owner  is  not  to  receive  any  particular  benefit 
by  the  location  of  the  road.    T.  &  P.  R.  R.  v.  Roberts,  22  111.  224. 

544.  EXCESSIVE  DAMAGES.    Over  ten  acres  of  land  in  the  city  of 
Peoria  were  sought  to  be  condemned  by  a  railway  company  for  a 
right  of  way,  and  twenty-five  witnesses  estimated  the  damages  to  the 
owner  at  various  sums  ranging  from  $1800  to  $18,000,  and  the  jury 
assessed  the  damages  at  $5,500:   Held,  not  excessive.    P.  &  R.  I.  R.R. 
v.  Birkett,  62  111.  332. 

545.  PRESUMPTION — that  jury  followed  instructions.    Where  a 
railway  company  has,  under  proceedings  to  condemn,  made  embank- 
ments and  constructed  its  road  before  the  final  hearing,  and  the  court 
instructs  the  jury  that  the  land-owner  is  entitled  to  the  value  of  the 
land,  with  the  improvements  put  thereon,  it  will  be  presumed  that  the 
jury  were  governed  by  the  instruction.    Mitchell  v.  III.  &  St.  L.  R. 
R.  &  Coal  Co.,  85  111.  566. 

546.  PERSONAL  VIEW.    Where  the  jury  go  upon  the  land  in  person 
and  examine  the  same,  such  examination  is  in  the  nature  of  evidence, 
and  in  such  case,  even  though  the  preponderance  of  the  evidence  pre- 
served in  the  record  is  clearly  against  so  large  an  assessment  as  found, 
a  new  trial  will  not  be  granted,  as  the  facts  ascertained  by  the  per- 
sonal examination  may  have  fully  justified  the  verdict.    Ch.  &  Iowa 
R.  R.  v.  Hopkins,  90  111.  316. 

547.  PRESUMPTION  IN  FAVOR  OF  VERDICT.    Where  the  evidence 
is  not  preserved  in  the  record,  every  presumption  will  be  indulged  in 
favor  of  the  findings  of  the  court  upon  all  questions  of  fact.    Fisher 
v.  Ch.  &  Spr.  R.  R.,  104  111.  323. 

548.  ON  THE  EVIDENCE— conflicting.    Where  the  evidence  is  con- 
flicting in  a  condemnation  proceeding  as  to  the  damages  and  compen- 
sation to  be  paid,  and  consists  chiefly  in  the  opinions  of  witnesses, 
some  of  whom  sustain  the  finding  and  some  do  not,  this  court  will 
not  feel  justified  in  reversing,  unless  it  is  able  to  say  the  verdict  is 
clearly  against  the  evidence.    Smith  v.  Ch.  &  W.  Ind.  R.  R.,  105  111. 
511. 

549.  Where  the  evidence  as  to  damages  from  locating  a  railway 
across  a  farm  is  conflicting  and  widely  variant,  and  the  jury  go  upon 
the  premises  and  examine  for  themselves,  their  assessment  of  dam- 
ages will  not  be  set  aside,  though  not  so  large  as  the  preponderance  of 
the  evidence  preserved  in  the  record  might  justify,  when  the  finding 
is  not  manifestly  wrong  upon  the  proofs.    McReynolds  v.  B.  &  0.  R. 
Ry.,  106  111.  152. 

550.  Where  the  evidence  is  conflicting  as  to  the  value  of  the  prop- 
erty sought  to  be  condemned  for  railroad  purposes,  and  the  jury  have 
examined  the  premises  in  person,  this  court  will  not  reverse  on  the 
ground  alone  that  the  damages  assessed  may  be  considered   high, 
unless  they  are  clearly  excessive.    Ch.  &  E.  R.  R.  v.  Jacobs.  110  111. 
414.  . 

551.  In  an  eminent  domain  proceeding  where  the  evidence  as  to 
the  value  of  the  land  taken  is  conflicting,  and  the  jury  take  a  view  of 
the  land,  and  then  find  a  verdict  for  an  amount  larger  than  that  sup- 
ported by  the  evidence  for  the  petitioner  and  smaller  than  that  sup- 
ported by  the  evidence  for  the  respondent,  this  court  will  not  disturb 
the  verdict.    Ch.  &  E.  R.  R.  v.  Slake,  116  111.  163. 

552.  INSTRUCTION— singling  out  certain  evidence.    An  instruc- 
tion which  singles  out  and  calls  attention  to  the  testimony  of  the 
land-owner  is  erroneous  and  unfair,  and  calculated  to  mislead  the 
jury  by  seemingly  giving  undue  importance  to  such  testimony.    J.  & 
8.  E.  Ry.  v.  Walsh,  106  111.  253. 


AND  EMINENT  DOMAIN.  65 

552a.  NEW  TRIAL.— amount  of  damages.  Where  there  is  great 
disparity  in  the  evidence  as  to  the  value  of  land  sought  to  be  con- 
demned for  a  railroad,  and  as  to  the  damages  to  the  parts  not  taken, 
this  court  will  not  reverse,  unless  it  appears  the  verdict  is  unreason- 
able, and  the  damages  are  so  grossly  excessive  as  to  evince  that  the 
verdict  is  the  result  of  passion  or  "undue  and  improper  motive  or 
influence.  Cal.  Rio.  Ry.  v.  Moore,  —  111.  — .  Filed  March  26,  1888. 

OF  THE  ELEMENTS  AND  MEASURE  OF  DAMAGES. 

(a)  IN  CASE  OF  ACTUAL  TAKING. 

553.  LAND  FOR  ROAD  AND  FERRY — damages  to  a  prior  ferry.  On 
the  condemnation  of  land  for  a  ferry  landing  and  a  public  road  thereto, 
neither  the  value  of  the  ferry  of  the  land  owner  across  the  same  stream, 
nor  that  of  the  ferry  privilege,  should  be  considered.    Mills  v.  St.  Clair 
Co.,  3  Scam.  53. 

WHEN  ONE  EAILEOAD  CROSSES  ANOTHER. 

554.  DAMAGES  BESIDE  LAND  TAKEN — loss  and  inconvenience.    A 
railway  company  whose  right  of  way  is  condemned  by  another  com- 
pany is  entitled  to  not  only  just  compensation  for  the  land  actually 
taken,  but  for  all  such  incidental  loss,  inconvenience  and  damage 
which  may  be  reasonably  expected  to  result  from  the  construction  and 
use  of  the  crossing  in  a  legal  and  proper  manner.    This  is  the  true 
measure  contemplated  by  §  13,  Art.  2,  of  the  constitution  of  1870,  and 
§  14,  Art.  11,  places  corporations  upon  the  same  footing.    C.  &  A.  R. 
R.  v.  Spr.  &  N.  W.  R.  R.,  67  111.  142. 

555.  KEEPING  ROAD  IN  REPAIR— evidence  of  cost — cutting  through 
embankment.    When  one  railway  company  acquires,  by  condemna- 
tion, the  right  to  run  its  road  through  a  high  embankment  of  another 
railroad,  twenty  feet  below  the  track  of  the  latter,  it  will  be  under  no 
legal  obligation  to  erect  and  maintain  a  bridge  to  support  the  track  of 
such  other  company;  and  therefore  proof  of  what  it  will  cost  to  build 
such  a  bridge  and  keep  it  in  repair  is  proper  on  the  assessment  of  dam- 
ages.   The  defendant  company,  in  such  case,  is  entitled  to  have  such 
sum  for  damages  as  will  enable  it  to  construct  and  keep  in  repair  all 
such  works  as  may  be  necessary  to  keep  its  track  in  a  safe  and  secure 
condition,  and  also  for  all  such  incidental  loss  and  inconvenience  as 
may  be  a  necessary  result.    Ib. 

556.  SAME — expectations  of  party  not  bound,  not  evidence.    The 
expectations  of  a  contractor  for  the  construction  of  a  railroad  across 
that  of  another  company  to  keep  the  proposed  work  in  repair,  is  not 
proper  evidence  on  the  question  of  damages  to  the  company  whose 
road  is  to  be  intersected,  there  being  nothing  to  bind  him  to  make  the 
repairs.    Ib. 

557.  EVIDENCE— opinion  of  witness—matter  of  law.    It  is  im- 
proper to  ask  a  witness  whose  duty  it  would  be  to  keep  a  railroad 
crossing  and  bridge  at  the  intersection  of  two  roads  in  repair,  as  call- 
ing for  an  opinion  on  a  matter  of  law .     Ib. 

558.  SAME — opinion  of  experts  as  to  damages.     It  is  competent 
for  experts,  such  as  engineers,  to  give  their  opinions  as  to  matters 
which  may  form  the  proper  ingredients  of  a  verdict,  but  not  to  usurp 
the  province  of  the  jury.    The  witness  raust  first  be  shown  to  be  com- 
petent to  give  an  opinion.    Ib. 

559.  On  the  assessment  of  damages  in  a  proceeding  by  one  rail- 
way company  to  condemn  a  right  of  way  across  that  of  another  com- 
pany, which  made  it  necessary  to  cut  through  a  heavy  embankment 

—6 


66  BAILBOADS,  WAREHOUSES, 

twenty  feet  below  the  grade  of  the  defendant  company,  and  thus 
remove  the  support  of  its  road  for  the  space  of  sixty  feet,  the  peti- 
tioner, after  proving  by  one  of  its  contractors  that  he  proposed  to 
support  defendant's  track  by  timbers,  which  he  described,  asked  him: 
"  If  you  put  in  the  cut  work  you  propose  to  do  and  have  described, 
what  would  be  the  damage  to  the  defendant  ?"  He  answered:  "  There 
would  be  no  damages."  Held,  that  the  evidence  was  improper,  on 
the  ground  that  the  question  called  for  an  opinion  based  upon  an 
assumption  that  petitioner  would  put  in  supports  which  it  was  not 
obliged  to  put  in,  and  because  the  answer  was  an  opinion  covering 
the  very  question  to  be  settled  by  the  jury.  Ib. 

560.  DAMAGES  WHEN  NEW  ROAD  CUTS  THROUGH  EMBANKMENT 
— elements.    When  a  right  of  way  is  sought  across  or  under  the  track 
of  another  company,  or  through  its  embankment,  the  latter  company 
will  be  entitled  to  receive  such  sum  as  will  enable  it  to  place  its  track 
over  the  point  at  which  the  ground  is  condemned  in  as  safe  a  condi- 
tion, as  near  as  can  be,  as  it  was  before  making  the  excavation.    The 
damages  should  cover  additional  expense  for  watchmen  when  travel 
over  the  excavation  is  hazardous;  the  expense  of  building  and  main- 
taining permanent  abutments  or  retaining  the  walls;  losses  incident 
to  rebuilding  or  repairing,  and  contingent  losses  by  fire  or  otherwise; 
and  if  any  other  kind  of  bridge  over  the  excavation  is  more  safe  than 
a  wooden  one,  the  compensation  should  be  sufficient  to  enable  the 
company  to  erect  and  perpetually  maintain  a  bridge  of  that  degree 
of  safety,  and  likewise  to  reimburse  it  for  all  inconvenience  and 
expense  incident  tc  the  erection  and  maintenance  of  such  a  bridge. 
St.L.,J.  &  C.  R.  R.  v.  8.  &  N.  W.  R.  R.,  96  111.  274. 

561.  DAMAGES  WHEN  PROPERTY  ADAPTED  TO  SPECIAL  USE— 
evidence.     Where  land  has  no  market  value  from  the  fact  of  its  being 
used  as  a  right  of  way  for  a  railroad,  and  devoted  to  a  special  use  of 
making  railroad  transfers,  estimates  of  its  value  with  reference  to  such 
use,  by  those  competent  to  speak  in  that  regard,  should  be  received 
on  the  question  of  compensation  to  be  paid  for  its  condemnation  for 
the  use  of  another  railroad  company  for  its  right  of  way,  and  it  is 
error  to  refuse  such  evidence.    L.  S.  &  M.  S.  Ry.  v.  Ch.  &  W.  Ind.  R. 
R.,  100  111.  21. 

562.  DAMAGES  TO  USE,  AS  AN  ENTIRETY.    Although  a  right  of 
way  of  a  railroad  company  is  limited  to  the  use  of  the  land  for  the 
construction,  maintenance  and  operation  of  a  railroad  upon  it,  this 
limited  use  is  property,  and  any  interference  with  it  at  any  point  by 
condemnation  by  another  railroad,  whereby  the  use  is  impaired,  may 
be  considered  in   connection  with  and  as  affecting  its  use  as  an 
entirety.    76. 

563.  DAMAGES  TO  PART  NOT  TAKEN.    On  a  proceeding  to  con- 
demn a  strip  of  land  across  the  right  of  way  of  a  railroad  company,  a 
limitation  of  the  damages  to  those  for  physical  injury  to  the  land 
sought  to  be  condemned  for  another  railroad  will  be  too  restricted. 
The  defendant  should  be  allowed  to  recover  for  the  obstruction  to  the 
use  of  its  remaining  property,  and  for  all  damage  to  it  resulting  from 
the  operation  of  the  second  railroad  on  the  strip  so  taken.    Ib. 

564.  SAME— elements  of.    In  a  proceeding  by  a  railroad  company 
to  condemn  a  right  of  way  across  the  prior  right  of  way  of  another 
company  upon  certain  blocks,  the  company  whose  franchise  is  sought 
to  be  taken  in  part,  will  not  be  restricted  in  its  compensation  to  the 
damages  of  its  right  of  way,  or  railroad  property  within  the  blocks. 
In  such  case,  it  will  be  competent  for  the  defendant  company  to  show 
and  recover  for  damages  it  will  be  subjected  to  by  placing  obstruc- 
tions upon  its  right  of  way,  in  maintaining  and  operating  the  pro- 
posed new  road,  whereby  access  to  different  parts  of  its  line  will  be 


AND  EMINENT  DOMAIN.  67 

interfered  with,  and  its  capacity  for  the  transaction  of   business 
impaired.    Ib. 

565.  DIRECT  AND  REMOTE  DAMAGES — diminution  of  capacity  to 
do  business.    Direct  and  immediate  damages  alone  are  recoverable  in 
this  class  of  cases,  and  remote  and  merely  incidental  damages  cannot 
be  considered.    It  is  that  injury  which  depreciates  the  value  of  the 
property,  whether  by  taking  a  portion  of  it  or  rendering  the  portion 
left  less  useful,  or,  in  case  of  a  railroad  company  or  other  corporate 
body,  less  capable  of  transacting  its  business, — such  a  hinderance  and 
inconvenience  as  to  occasion  lo*s  or  diminish  and  limit  its  capacity  to 
transact  its  business  by  decreasing  the  power  to  transact  as  much,  or 
necessarily  increasing  the  expense  of  what  may  be  done,  although  not 
diminished;  and  this  hinderance  must  produce  immediate  or  future 
loss.    If  the  new  structure,  when  made,  does  not  abridge  the  owner's 
capacity  without  increased  expense  to  transact  an  equal  volume  of 
business,  then  though  there  may  be  inconvenience  and  annoyance, 
unless  the  property  is  depreciated  in  value,  these  are  not  elements  of 
damages.    Peoria  &  Pekin  Union  Ry.  v.  Peoria  &  Farmington  Ry., 
105  111.  110. 

566.  ELEMENTS  OF  DAMAGE— stoppage  of  trains  at  crossings- 
The  law  requiring  railroad  trains  to  stop  before  crossing  another  rail- 
road, being  a  mere  police  regulation  and  subject  to  repeal  at  any  time, 
the  damages  sustained  by  a  railway  company  for  the  delay,  inconve- 
nience and  trouble  in  stopping  before  crossing  another  road  seeking  a 
condemnation  for  a  right  of  way,  ar^  too  vague,  indefinite  and  contin- 
gent to  be  an  element  in  the  assessment  of  damages  in  favor  of  the 
road  so  to  be  crossed.    Ib. 

567.  INCREASED  DANGER  FROM  CROSSING — too  remote  and  uncer- 
tain.   JSTor  is  the  increased  danger  arising  from  the  crossing  of  the 
track  of  one  railroad  by  the  trains  of  another  to  be  considered  as  an 
element  of  damage  in  such  proceeding.    To  allow  damages  on  such  a 
claim  would  violate  the  rule  that  they  cannot  be  allowed  on  mere  con- 
jecture, speculation,  fancy  or  imagination.    Ib. 

568.  This  rule  is  not  in  conflict  with  what  was  said  in  L.  S.  &  M.  8. 
R.  R.  v.  Ch.  &  W.  Ind.  R.  R.,  100  111.  21,  where  it  was  held  that  not  only 
such  injury  and  inconvenience  as  reduce  the  capacity  of  the  corpora- 
tion to  transact  its  business,  and  necessarily  result  in  damage  and 
loss,  are  elements  of  damage.    Ib. 

569.  SEVERING  CONNECTION  WITH  ELEVATOR — when  no  dam- 
age.  Where  an  elevator  used  for  the  deposit  of  grain  stands  on  ground 
considerably  above  and  some  distance  from  a  river  upon  which  grain 
was  carried  from  the  elevator,  and  it  appearing  that  the  grain  was 
transferred  from  the  elevator  to  boats  at   the  wharf   through  an 
inclined  chute,  or  tube,  called  a  conductor,  and  that  a  railroad  seeking 
a  condemnation  was  proposed  to  be  located  between  the  elevator  and 
the  river,  and  was  to  be  constructed  on  trestles  and  elevated  entirely 
above  the  chute  or  conductor,  so  as  not  to  interfere  with  the  transfer- 
ring of  grain  from  the  elevator  to  the  river,  it  was  held,  that  there 
was  no  loss  to  the  owner  of  the  elevator,  and  therefore  could  be  no 
damage.    Ib. 

570.  EvipENCE^pZcm  of  proposed  road  on  question  of  damages. 
In  a  proceeding  to  condemn  a  right  of  way  for  a  railroad  over  a  strip 
of  land  between  an  elevator  and  a  river,  the  plans  by  which  the  com- 
pany proposes  to  build  the  road,  as  showing  the  track  is  to  be  laid 
upon  trestles  elevated  so  high  as  not  to  interfere  with  the  transfer  of 
grain  from  the  elevator  to  the  river  in  chutes  or  conductors,  are 
admissible  in  evidence  on  the  question  of  damages  and  compensation. 
Ib. 


68  KAILEOADS,  WAEEHOUSES. 

571.  STIPULATION  TO  MAINTAIN  AND  KEEP  IN  REPAIR  FROGS 
AND  CROSSING — evidence  as  to  damages.   In  a  proceeding  to  condemn 
a  right  of  way  across  that  of  another  railway  company,  the  petitioners 
offered  in  evidence  a  stipulation  or  covenant,  properly  executed  by  it, 
that  it  would,  and  should,  at  its  own  expense,  put  in  and  thereafter 
maintain  in  suitable  and  proper  repair,  the  frogs  and  crossing  across 
two  main  tracks  of  the  defendant,  and  that  this  stipulation  should  be 
binding  on  the  successors  and  assigns  of  the  petitioner  so  long  as  a 
grade  crossing  should  be  maintained  at  the  crossing  of  the  right  of 
way  sought  to  be  condemned:  Held,  that  this  was  a  valid  obligation, 
enforcible  against  the  petitioner  and  its  successors  and  assigns,  and 
was  properly  admissable  in  evidence.    C.  &  A.  R.  R.  v.  Joliet,  Lock- 
port  &  Aurora  Ry.,  105  111.  388. 

572.  The  obligation  being  a  valid  one,  securing  the  construction 
and  maintenance  of  the  proposed  crossing  at  the  expense  of  the  peti- 
tioner, its  successors  and  assigns,  the  cost  thereof  could  not  become 
an  element  of  damages  in  favor  of  the  defendant  corporation,  and 
would  operate  to  exclude  any  evidence  on  behalf  of  the  defendant  on 
that  subject.    Ib. 

578.  STIPULATION— right  of  action  on.  The  stipulation  is  suffi- 
ciently definite  as  to  the  manner  in  which  the  work  of  making  the 
crossing  was  to  be  done,  and  as  to  what  extent  it  would  affect  the 
defendant.  A  "  suitable  and  proper  crossing  "  is  a  phrase  well  under- 
stood by  civil  engineers  and  practical  railroad  men.  Any  marked 
departure  from  the  stipulation  in  that  regard  would  afford  the  defend- 
ant a  right  of  action  for  the  recovery  of  any  damages  caused  thereby. 
Ib. 

574.  The  force  and  effect  of  the  obligation  as  an  instrument  of 
evidence,  and  as  excluding  all  question  of  damage  arising  from  the 
expense  of  constructing  and  maintaining  the  crossing,  is  not  at  all 
impaired  from  the  fact  that  it  is  a  mere  promise,  which  may  not  be 
performed.    The  covenant  is  thought  to  run  with  the  land,  and  for 
any  breach  thereof  a  right  of  action  is  given,  which  will  afford  com- 
plete indemnity  to  the  defendant  company.    It  cannot  be  presumed, 
in  the  absence'of  testimony,  that  the  petitioner  will  be  unable  from 
any  cause  to  perform  its  obligation.    Ib. 

575.  CASES  DISTINGUISHED— crossing  on  or  under  grade.    In  this 
case  the  crossing  was  upon  grade,  and  it  would  be  the  duty  of  both 
parties  to  see  that  the  crossing  was  properly  constructed  and  main- 
tained in  a  safe  condition,  and  in  this  respect  is  to  be  distinguished 
from  the  cases  of  C.  &  A.  R.  R.  v.  Spring/.  &  Northwestern  R.  R.,  67 
111.,  142,  and  96  111.  274.    In  that  case  the  crossing  was  not  upon  grade, 
but  was  an  under  crossing  made  by  cutting  through  a  high  embank- 
ment under  the  track  of  defendant's  road,  thereby  removing  all  the 
support  it  had.    It  did  not  appear  that  the  petitioner  was  under  any 
obligation  by  its  duty  to  the  public  as  a  common  carrier,  or  by  any 
stipulation  or  otherwise,  to  keep  defendant's  track  above  its  own  in  a 
suitable  and  safe  condition,  and  so  the  expense  incurred  by  the  defend- 
ant in  that  regard  was  a  very  proper  element  of  damage.    Ib. 

576.  STOPPAGE  or  TRAINS — no  element  of  damages.    The  fact 
that  the  defendant  corporation  is  required  by  statute  to  bring  its 
trains  to  a  halt  upon  an  ascending  grade  before  crossing  the  new 
road,  and  thereby  the  hauling  capacity  of  its  engines  will  be  impaired, 
affords  no  element  of  damages.     The  statute  requiring  such  stoppage 
is  simply  a  police  regulation,  the  existence  of  which  is  subject  to  the 
legislative  will.    Ib. 

577.  It  is  a  principle  underlying  all  conduct  that  neither  a  natural 
person  nor  a  corporation  can  claim  damages  on  account  of  being  com- 


AND  EMINENT  DOMAIN.  69 

pelled  to  render  obedience  to  a  public  regulation.  Obedience  to  law 
is  a  service  all  citizens  and  corporations  are  bound  to  render  to  the 
state,  and  no  damages  can  grow  out  of  such  act  of  obedience.  Ib. 

578.  DEPRECIATION  OF  VALUE — impairing  capacity  to  do  busi- 
ness.   A  railway  company  seeking  a  right  of  way  across  the  track  of 
a  defendant  company  is  liable  for  all  damages  directly  resulting  to 
the  latter  from  the  making  or  the  using  of  the  crossing,  whereby  the 
value  of  its  property  is  diminished,  or  its  facilities  are  materially 
impaired  for  the  transaction  of  its  business.    If  the  crossing  abridges 
the  defendant  company's  capacity  to  transact  an  equal  volume  of 
business,  it  is  an  element  of  damages,  even  though  it  does  not  increase 
its  expenses.    Ch.  &  W.  Ind.  JR.  R.  \.  Englewood  Connecting  Ry.,  115 
111.  375. 

579.  SAME — stipulation.    On  a  proceeding  by  a  railway  company 
to  condemn  a  right  of  way  over  the  track  of  another  company,  the 
latter  will  have  the  right  to  show  that  the  value  of  its  road  and  its 
capacity  to  do  business  will  be  impaired,  notwithstanding  a  stipula- 
tion of  the  former  that  it  will,  at  its  own  expense,  put  down  and  keep 
in  repair  all  necessary  frogs  and  crossings  for  its  main  tracks,  and  it 
is  error  to  exclude  such  evidence.    Ch.  &  W.  Ind.  R.  R.  v.  Englewood 
Connecting  Ry.,  115  111.  375. 

580.  Wherever  a  condemnation  and  subsequent  use  of  a  right  of 
way  across  a  railroad  track  will  injuriously  affect  the  strength,  per- 
manency and  durability  of  the  defendant  company's  structures,  and 
their  adaptability  and  capacity  of  doing  railroad  business,  the  injury 
thus  occasioned  will  form  a  proper  basis  for  the  assessment  of  dam- 
ages in  a  proceeding  to  condemn.    Ib. 

LAND  TAKEN  FOR  PUBLIC  USE. 

581.  BENEFITS— FARM  LAND — set  off.    The  rule  for  the  assessment 
of  damages  for  land  taken  is  an  equitable  one.    Special  benefits  to  the 
land  may  be  deducted  from  the  damages,  but  benefits  in  common  with 
other  lands  growing  out  of  the  enhanced  value  by  the  public  improve- 
ment should  not  be.    State  v.  Evans,  2  Scam.  208. 

582.  SAME— from  location  of  railroad.    In  assessing  damages  for 
right  of  way  for  a  railroad  over  a  tract  of  land  under  the  act  of  1833, 
only  the  benefits  resulting  to  the  land  from  the  construction  of  the 
road,  and  not  those  arising  from  the  location  of  the  road,  may  be  con- 
sidered by  the  jury.    Ib.    State  v.  Wilson,  2  Scam.  225. 

583.  COMPENSATION — value  of  land  taken,  and  dividing  farm. 
The  measure  of  damages  is  not  merely  the  value  of  the  land  taken, 
but  also  such  other  damages  as  may  result,  as  the  breaking  up  of  the 
convenient  arrangement  of  the  farm,  the  necessity  for  additional  fen- 
cing, &c.    State  v.  Evans,  2  Scarn.  208. 

584.  SAME— may  be  in  benefits.    The  word  "compensation"  in  the 
constitution  of  1848,  means  that  which  is  given  as  an  equivalent  for 
a  loss,  but  that  instrument  does  not  determine  how  that  equivalent 
shall  be  made  up.    A.  &  S.  R.  R.  v.  Carpenter,  14  111.  190. 

585.  BENEFITS — under  law  of  1845.    Under  Chap.  92,  R.  S.  1845, 
"concerning  the  right  of  way,"  in  assessing  damages  to  the  owners  of 
land,  it  is  proper  to  consider  all  appreciable  advantages  and  disad- 
vantages accruing  to  them  from  whatever  cause    Ib. 

586.  From  this  statute  the  payment  of  damages  to  the  owner  of  a 
tract  of  land  for  the  tight  to  consti  uct  a  railroad  through  it,  was  never 
intended,  where  the  additional  value  given  to  the  land  is  equal  to  any 
injury  sustained.  Ib. 


70  KAILKOADS,  WAKEHOUSES, 

587.  BENEFITS— /row  any  reason,  set  off.    If  (additional  value  is 
given  to  the  land  by  the  construction  of  public  works,  it  matters  not 
whether  it  be  by  draining  the  land  which  was  before  wet,  by  affording 
additional  facilities  for  taking  its  produce  to  market,  or  by  the  general 
enhancement  in  value  of  the  land  occasioned  by  its  contiguity  to  the 
public  works.    Ib. 

588.  FARM  LAND— elements  of  damage.    In  estimating  damages 
for  constructing  a  railroad  through  a  farm,  the  injuries  which  the  pro- 
prietor suffers  by  having  his  farm  divided  so  as  to  make  it  inconveni- 
ent to  pass  from  its  different  parts,  and  to  compel  him  to  erect  addi- 
tional fences,  are  as  proper  elements  of  damages  to  be  considered  as 
the  value  of  the  land  taken.    A.  &  8.  R.  R.  v.  Carpenter,  14  111.  190. 

589.  BENEFITS— by  laying  a  street.    Under  a  statute  requiring  the 
jury  to  take  into  consideration  the  benefits  as  well  as  the  injury  caused 
by  the  opening  of  a  street,  if  the  benefits  are  equal  to  the  injuyy,  or 
the  land  will  sell  for  as  much  with  the  proposed  street  as  without  it, 
it  is  the  duty  of  the  jury  to  find  no  damages.    Curry  v.  Mt.  Sterling. 
15  111.  320. 

590.  ELEMENTS  or  DAMAGES — extra  fencing.    The  cost  of  erect- 
ing and  maintaining  a  fence  along  the  right  of  way  of  a  railroad,  is  a 
proper  element  of  damage,    tit.  L.,  J.  &  Ch.  R.  R.  v.  Mitchell,  47  111. 
165;  R.  I.  &  A.  JR.  R.  v.  Lynch,  23  111.  645;  Tonica  &  Petersburg  R.  R. 
v.  Unsicker,  22  111.  221. 

591.  BENEFITS— land  for  a  park.    The  compensation  to  be  paid 
the  owner  of  land  for  a  public  park  may  be  raised  by  special  assess- 
ments upon  the  land  benefited  by  the  location  and  construction  of  the 
park,  including  the  owners  of  other  lands.    The  benefits  to  his  remain- 
ing land  mav  be  the  compensation  contemplated  by  the  constitution 
of  1848.    People  v.  Williams,  51  111.  63. 

592.  BENEFITS  —not  set  off  as  to  land  taken.    The  owner  of  land 
taken  for  a  railroad,  under  the  act  of  1852,  must  be  paid  in  money 
alone  the  full  value  of  the  land  taken,  irrespective  of  any  benefits  or 
advantages  to  his  remaining  land  by  the  construction  and  use  of  the 
road.    Hayes  v.  Ottawa,  Oswego  &  Fox  River  Valley  R.  R.,  54  111.  373. 

593.  BENEFITS — against  damages  for  land  not  taken.    But  in 
estimating  his  damages  by  reason  of  the  construction  and  use  of  the 
road  apart  from  the  question  of  the  land  taken,  such  benefits  and 
advantages  are  to  be  taken  into  consideration  and  estimated.    Ib. 

594.  The  decision  in  Alton  &  Sangamon  R.  R.  v.  Carpenter,  14 
111.  190,  holding  that  compensation  could  be  made  in  benefits,  was 
made  under  the  act  of  1845,  and  does  not  control  the  construction  of 
the  act  of  1852  on  that  subject.    76. 

595.  ELEMENTS  OF  DAMAGE — loss  of  a  spring  on  farm.    Where 
the  owner  of  land  over  which  it  is  sought  to  condemn  a  right  of  way 
claims  that  he  will  thereby  lose  the  beneficial  use  of  a  spring  on  the 
land,  that  is  a  proper  subject  for  the  consideration  of  the  jury  in 
adjusting  the  compensation.    Peoria  &  Rock  Island  Ry.  v.  Bryant, 
57  111.  473. 

596.  BENEFITS— under  act  of  1852.    Under  the  act  of  1852,  in 
estimating  the  benefits  to  the  land  owner,  the  jury  should  not  con- 
sider such  as  he  receives  on  his  other  land  in  common  with  owners  of 
other  lands,  but  assess  to  him  only  such  benefits  as  he  will  receive 
over  such  common  benefit.    P.,  P.  &  J.  R.  R.  v.  Black,  58  111.  33. 

597 .  SAME— to  other  lands  of  same  owner.    Where  a  railway  char- 
ter provided  that  in  condemning  the  right  of  way,  the  commissioners 
should  view  the  premises  and  assess  the  value  of  the  same  and  all 
damages  to  the  owner  and  the  benefits  of  the  road,  taking  into  con- 


AND  EMINENT  DOMAIN.  71 

sideration  the  advantages  and  disadvantages  by  reason  of  the  con- 
struction of  the  road,  and  report  the  amount  of  damages,  if  any,  over 
and  above  the  benefits:  Held,  that  these  provisions  did  not  authorize 
the  estimation  of  the  benefits  the  other  lands  of  the  owner  over  which 
the  road  did  not  run  would  receive.  St.  L.,  V.  &  T.  H.  R.  R.  v.  Brown, 
58  111.  61. 

598.  Where  the  road  was  located  over  two  forty  acre  tracts  of  the 
same  person,  and  he  released  the  right  of  way  over  one  of  them,  it 
would  be  error  to  estimate  the  benefits  that  that  forty  acres  would 
receive  by  the  building  of  the  road  and  deduct  them  from  the  damages 
to  the  other  tract.    Ib. 

599.  ALL  APPRECIABLE  DAMAGES.    All  injuries  which  are  appre- 
ciable, and  which  result  to  the  land  owner  from  the  construction  of  a 
railroad  over  the  land,  are  legitimate  subjects  in  the  estimation  of 
damages.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Mollett,  59  111.  235. 

600.  DAMAGES — FRUIT  TREES — separate  assessment.  If  fruit  trees 
which  are  upon  the  land  taken  are  not  included  in  the  damages  for 
the  land  itself,  they  may  properly  be  the  subject  of  a  separate  assess- 
ment.   The  mode  of  assessment  is  immaterial  so  that  the  damages  are 
fairly  and  truly  assessed.    Ib. 

601.  ELEMENTS  OF — ditching  made   necessary.    When  ditching 
the  adjacent  land  becomes  necessary  by  means  of   embankments 
thrown  up  for  the  road,  the  expense  thereof  is  a  proper  element  of 
damages.    Ib. 

602 .  SAME — cattle  guards.    But  cattle  guards  are  not  proper  sub- 
jects for  such  an  assessment,  because  they  could  enter  into  the  esti- 
mate only  on  the  hypothesis  that  the  proprietor  of  the  land  may 
construct  them,  which  he  would  have  no  right  to  do,  except  by  permis- 
sion of  the  company.    Ib. 

603.  BENEFITS— under  act  of  1852.     Where  private  property  is 
condemned  under  the  act  of  1852  for  the  use  of  a  railroad,  the  land 
taken  must  be  paid  for  without  regard  to  the  benefits  accruing  to  the 
owner  by  reason  of  the  construction  and  operation  of  the  road.     Wil- 
son v.  R.,  R.  I.  &  St.  L.  R.  R.,  59  111.  273. 

604.  COMPENSATION— market  value  of  land  taken.    The  measure 
of  compensation  in  such  case,  and  as  guaranteed  by  the  constitution 
of  1848,  is  the  market  value  of  the  land  taken.    Ib. 

605.  BENEFITS — set  off  against  damages  in  act  of  1852.    But  as  to 
damages  to  land  not  taken,  resulting  from  the  construction  and  ope- 
ration of  the  road,  there  may  be  set  off  the  benefits  accruing  to  him 
thereby.    Ib. 

606 .  CUTTING  OFF  STRIP  OF  FARM— elements  of  damage.     Where 
the  right  of  way  severs  a  strip  of  about  two  acres  from  a  farm,  while 
compensation  cannot  be  demanded  for  such  a  strip,  it  will  form  an 
element  in  assessing  the  damages  to  the  owner  by  the  operation  of  the 
road.    Such  strip  or  its  value,  the  inconvenience  of  the  owner,  and  the 
danger  to  which  he  and  his  family  and  his  stock  are  exposed  in  pass- 
ing from  one  part  of  the  farm  to  the  other,  are  proper  elements  of 
damages,  against  which  should  be  set  off  the  facilities  afforded  by  the 
road  and  a  convenient  depot  for  getting  the  products  of  the  farm  to 
market,  as  also  the  actual  increase  in  the  market  value  of  the  farm 
occasioned  by  the  road.     Wilson  v.  .R.,  R.  I.  &  St.  L.  R.  R.,  59 
111.  273. 

607.  DAMAGE  TO  OTHER  LANDS — road  made  without  authority. 
Where  a  railway  company,  without  license  of  the  owner  or  authority 
of  law,  enters  upon  land  and  constructs  its  road  over  the  same,  on  a 
proceeding  to  condemn  the  right  of  way,  the  company  will  be  held 


72  EAILBOADS,  WAREHOUSES, 

liable  for  damages  resulting  to  other  lands  of  the  owner  from  the 
construction  of  the  road.     T.,  P.  &  W.  Ry.  v.  Darst,  61  111.  231. 

608.  BENEFITS— tinder  acts  of  1845  and  1852.    The  law  of  1845 
permitted  the  general  benefits  received  to  be  estimated  against  the 
damages,  though  conferred  upon  other  lands  and  in  other  ways,  while 
the  law  of  1852  restricts  the  offset  of  benefits  against  the  particular 
tract  benefited.    P.,  P.  &  J.  R.  R.  v.  Laurie,  63  111.  264. 

609.  FARM  LAND — various  elements  of  damages.    In  a  proceed- 
ing to  condemn  land  for  a  railroad  track,  the  jury  are  entitled  to 
know  the  amount  of  land  taken,  how  it  affects  the  remainder,  how  it 
divides  the  farm  as  to  water,  pasturage,  improvements,  &c.,  and  also 
the  danger  and  inconvenience  in  the  perpetual  use  of  the  track  for 
moving  trains  over  the  same,  and  what  injury,  if  any,  to  stock  kept 
on  the  farm,  and  many  other  things  connected  therewith,  better 
understood  and  better  to  be  explained  by  persons  of  large  experience 
in  such  matters;  and,  as  a  general  rule,  any  evidence  that  tends  to 
illustrate  these  various  subjects  is  admissable.    R.,  R.  1.  &  St.  L.  R.  R. 
v.  McKinley,  64  111.  338. 

610.  LAND  TAKEN— market  value  and  capabilities.  The  true  test 
as  to  the  damages  to  be  paid  for  land  taken  is  its  market  value;  but 
in  estimating  the  damages,  reference  may  be  had  not  merely  to  the 
uses  to  which  the  land  is  actually  applied,  but  its  capabilities,  so  far 
as  they  add  to  its  market  value,  may  also  be  taken  into  consideration. 
If  the  land  has  a  mine  under  its  surface,  that  fact  may  be  considered, 
if  the  mine  adds  to  the  market  value  of  the  land  even  though  such 
mine  has  never  been  used.    So  of  a  water  power,  even  though  it  has 
never  been  utilized.    Hastam  v.  tf .  &  -S.  W.  It.  R.,  64  111.  353. 

611 .  BUILDING  DESTROYED— measure.    The  law  requires  that  for 
all  property  taken  by  a  railway  company  for  its  use,  or  damaged  by  it, 
just  compensation  shall  be  made  to  the  owner.    If  a  building  stands  in 
the  way  which  it  is  necessary  to  destroy,  its  value  must  be  paid  by  the 
corporation;  and  the  jury,  in  estimating  its  value,  will  take  into  con- 
sideration, not  the  value  of  the  material  composing  the  same,  but  the 
value  o.f  the  building  as  such.    Should  any  of  the  debris  remaining  on 
its  removal  or  destruction  be  appropriated  by  the  owner  of  the  land, 
to  the  extent  of  its  value  will  the  claim  of  the  owner  be  lessened.    L., 
B.  &  M.  R.  R.  v.  Winslow,  66  111.  219. 

612.  EASEMENT — considered  on  assessment  of  damages.    If  asked, 
the  court  should  instruct  the  jury  to  take  into  consideration  the  fact 
that  the  corporation  acquires  only  an  easement  in  the  land  con- 
demned, and  they  should  allow  to  that  fact  such  importance  as  they 
may  deem  proper.    Ib. 

613.  COMPENSATION— in  money  alone.    The  compensation  to  be 
ascertained  by  a  jury  for  the  taking  of  land  must  be,  in  terms,  money; 
and  the  jury  have  no  power  to  prescribe  the  performance  of  other 
acts,  such  as  fencing  the  road,  making  crossings,  &c.    Ch.,  Mil.  &  St. 
P.  Ry.  v.  Melville,  66  111.  329. 

614.  FARM  LAND — elements  of  damages— fire.    Evidence  as  to 
the  danger  of  killing  stock  and  the  escape  of  fire  by  reason  of  the  con- 
struction of  a  railroad  through  a  farm,  is  proper  to  be  considered  by 
the  jury.    Such  damages  are  as  much  proximate  as  those  growing  out 
of  the  danger  and  inconvenience  of   crossing  the  road  from  one 
part  of  the  farm  to  another.    St.  L.  &  S.  E.  Ry.  v.  Teters,  68  111.  144. 

615.  MEASURE  IN  GENERAL — all  injuries.    The  design  of  the  law 
is  to  fully  compensate  a  party  for  all  injury  he  may  sustain  by  reason 
of  the  appropriation  of  his  land  for  railroad  purposes  and  which  shall 
grow  out  of,  or  be  occasioned  by  the  location  and  use  of  the  road.    Ib. 


AND  EMINENT  DOMAIN.  73 


616.  BENEFITS— set  off— only  against  damages.    The  owner  of 
land  taken  for  public  improvement  is  entitled  to  tne  value  of  the  land 
actually  taken  without  any  regard  to  supposed  benefits  arising  from 
the  proposed  improvement.    If  he  claims  damage  to  the  part  of  his 
land  not  taken,  and  it  has  received  special  benefits,  they  may  be  con- 
sidered in  arriving  at  the  owner's  damages.    The  same  rule  applies  in 
a  proceeding  to  condemn  land  for  a  street  under  Art.  9  of  the  act 
relating  to  cities  and  villages,  as  it  does  under  the  eminent  domain  act. 
Harwood  v.  Bloomington,  —  ill.  — .    Filed  March  28, 1888. 

617.  It  is  hardly  practicable  to  state  any  inflexible  rule,for  estimat- 
ing damages  to  the  land  owner.    The  amount  should  be  sufficient  to 
cover  all  the  actual  damages  sustained  by  reason  of  the  construction 
of  the  road,  the  land  taken,  all  physical  injuries  to  the  residue,  and  for 
all  inconveniences  of  every  character  actually  produced,  but  nothing 
should  be  allowed  for  imaginary  or  speculative  damages,  or  such 
remote  and  inappreciable  damages  as  may  be  imagined,  but  never  occur. 
Jones  v.  Ch.  &  Iowa  R.  R.,  68  ill.  380. 

618.  FENCING.    When  the  railway  company  has  fenced  its  track 
through  land  it  is  seeking  to  condemn  for  right  of  way,  it  is  not  error 
to  instruct  the  jury  not  to  consider  the  failure  to  maintain  the  fences 
as  an  element  of  damages .     Ib. 

619.  FAKM  CROSSINGS.    The  statute  not  having  given  the  land 
owner  any  remedy  to  compel  the  erection  and  maintenance  of  farm 
crossings,  and  they  not  being  any  part  of  the  fence,  the  failure  to  erect 
and  maintain  such  crossings  may  be  considered  as  an  element  of 
damages.    Ib. 

620.  DANGER  OF  FIRE.    Damage  from  fire  in  most  cases  may  be 
reckoned  among  imaginary  dangers  that  may  or  may  not  occur,  and  if 
they  do  the  law  affords  a  speedy  and  effectual  remedy.    But  if  the 
road  is  constructed  so  near  the  owner's  buildings  as  that  the  danger 
from  fire  is  real,  it  may  constitute  an  element  of  increased  damages.  Ib. 

621.  DIVIDING  FARM.    The  fact  that  a  portion  of  a  farm  is  cut  off 
by  a  railroad,  is  in  very  many,  if  not  in  all  cases,  a  permanent  injury 
to  the  whole  farm  and  materially  diminishing  its  value  and  is  a  legiti- 
mate source  of  damages.    G.  &  8,  Wis.  R.  R.  v.  Birkbeck,  70  111.  208. 

622.  DAMAGE  TO  PART  CUT  OFF — must  be  to  entirety.    When  a 
railroad  is  located  over  a  tract  of  land,  and  compensation  is  allowed 
the  owner  for  the  land  actually  taken,  he  cannot  recover  damages  to 
a  small  part  of  the  tract  not  taken,  if  the  whole  is  not  damaged  when 
taken  together.    Page  v.  Ch.,  Mil.  &  St.  P.  Ry.,  70  111.  324. 

623.  The  jury,  under  the  act  of  1872,  are  not  required  to  assess 
the  damages  to  a  strip  of  land  lying  within  a  few  feet  of  the  right  of 
way  of  a  railroad,  but  the  damages,  if  any,  to  the  entire  tract  by  reason 
of  the  construction  and  operation  of  the  road.    The  effect  must  be 
considered  upon  the  market  value  of  the  entire  tract,  and  not  a  dis- 
tinct part.    Ib. 

624.  SAME — true  measure — difference  in  value.     The  true  com- 
pensation for  land  not  taken  by  a  railway  company  for  a  right  of  way, 
is  the  difference  between  what  the  whole  property  would  have  sold 
for  unaffected  by  the  railroad,  and  what  it  would  sell  for  as  affected 
by  it,  if  it  would  sell  for  less.    The  damages  must  be  for  an  actual 
diminution  of  the  market  value  of  the  land  and  not  speculative.    Ib. 

625.  BENEFITS — against  damage  to  land  not  taken.    If  the  incon- 
venience of  the  road  to  a  certain  selected  part  of  the  tract  is  out- 
weighed by  the  additional  convenience  of  the  road  to  the  residue  of 
the  tract,  it  will  not  be  damaged.    This  is  not  deducting  benefits  from 
damages.    Ib. 


74  EAILROADS,  WAEEHOUSES, 

626.  LOTS  NOT  TAKEN — difference  in  market  value.    Where  land 
is  not  taken  by  a  railway  company  for  its  right  of  way,  but  damaged 
only,  the  question  should  be,  will  the  property  be  of  less  value  when 
the  road  is  constructed  than  it  was  when  it  was  located.    If  so,  then 
the  difference  is  the  measure  of  damages.    To  ascertain  this,  the  opin- 
ion of  intelligent  witnesses  is  proper.    Eberhart  v.  Ch.,  Mil.  &  St.  P. 
Ry.,  70  111.  347. 

627.  SAME— damages  must  be  actual.    The  damages  contemplated 
by  the  constitution,  where  the  property  is  not  taken,  must  be  actual, 
real  and  present  damage  to  the  property.    Ib. 

628.  DIVIDING  FARM  —elements  of  damages.    The  cutting  off  of  a 
portion  of  a  person's  farm  by  a  railroad  through  it,  requiring  him  to 
travel  a  greater  distance  to  reach  the  part  cut  off,  and  the  danger  to 
him,  his  family  and  stock  in  crossing  the  track  from  one  part  of  the 
farm  to  another,  are  proper  elements  of  damages.    P.,  A.  &  D.  R.  R.  v. 
Sawyer,  71  111.  361. 

629.  DAMAGE  TO  PART  NOT  TAKEN— must  be  direct  and  physi- 
cal.   The  damage  to  lands  not  taken,  but  injured  by  the  taking  of 
other  land  of  the  same  owner,  must  be  direct  and  physical,  and  result 
from  the  taking  of  a  portion  of  his  land.    Stetson  v.  Ch.  &  E.  R.  R., 

75  111.  74. 

630 .  KAILWAY  STRUCTURE— zmi  on  land  by  consent.    Where  it  is 
alleged  in  a  petition  to  condemn  land  for  a  right  of  way  by  a  railway 
company  that  a  railroad  had  been  previously  constructed  on  the  same 
with  the  owner's  consent,  which  is  not  denied  in  the  pleadings,  the 
land  owner  will  not  be  entitled  to  the  value  of  the  road  structure  as  a 
part  of  his  land.    Emerson  v.  Western  Union  R.  R.,  75  111.  176. 

631.  BENEFITS— as  against  land  taken.    Under  §  13,  Art.  2,  of  the 
constitution  of  1870,  the  full  value   of  land  taken  for  a  highway 
must  be  paid  in  money  alone,  disregarding  all  benefits  and  advantages 
that  may  result  to  the  portion  not  taken  by  reason  of  the  establishing 
of  the  road,  and  it  is  not  in  the  power  of  the  legislature  to  provide 
otherwise.    Carpenter  v.  Jennings,  77  111.  250. 

632 .  Where  the  proceedings  to  lay  out  a  public  highway  show  that 
the  jury  in  assessing  the  compensation  to  be  paid  to  the  owner,  under- 
took to  pay  him  in  part  in  benefits  to  his  other  land  by  the  construc- 
tion of  the  road,  and  not  wholly  in  money,  it  was  held,  that  the  jury 
transcended  their  powers,  and  that  their  action  was  void.    76. 

633.  BENEFITS— set  off  under  act  of  1852.  Under  the  act  of  1852  the 
owner  of  land  taken  by  a  railroad  is  entitled  to  compensation  at  all 
events  to  the  extent  of  the  value  of  the  land  taken,  without  any 
deduction  for  benefits  the  land  may  receive  from  the  location  or  con- 
struction of  the  road;  but  such  benefits  may  be  set  off  against  any 
damage  the  remaining  land  may  sustain  by  the  'construction  of  the 
road.    Todd  v.  K.  &  I.  R.  R.  R.,  78  111.  530. 

634.  The  damages  done  to  one  piece  of  land  through  which  a  rail- 
road is  run  cannot  be  compensated  by  benefits  accruing  to  another 
and  separate  piece  of  land  through  which  it  does  not  run,  althoiigh 
belonging  to  the  same  person.    Ib. 

635.  BLOCKS — when  treated  as  distinct  tracts.    Where   a  town 
has  been  laid  out  into  blocks  and  streets  for  many  years,  and  the  same 
has  always  been  treated  as  blocks  and  streets,  the  blocks  will  be 
treated  as  distinct  tracts  for  the  purposes  of  assessing  damages  for 
right  of  way,  although  the  plat  may  not  be  made  according  to  law. 
Todd  v.  K.  &  III.  River  R.  R.,  78  111.  530. 

636.  BENEFITS — set  off  against  damages — elements  of,   to  farm 
land.    In  assessing  damages  under  the  act  of  1872  to  the  owner  for 


AND  EMINENT  DOMAIN.  75 

land  taken  by  a  railway  company  for  right  of  way,  the  jury  may  take 
into  consideration  rot  only  the  value  of  the  land  taken,  but  all  the 
facts  which  contribute  to  produce  the  damages  to  that  not  taken,  as 
that  the  farm  is  put  in  a  worse  shape  for  cultivation  or  pasturage; 
that  some  portion  of  it  is  more  dangerous  for  use;  that  there  is  dan- 
ger of  tire  from  passing  engines,  and  all  other  actual  inconvenience 
and  damage  the"!  property  may  sustain  in  its  use,  net  only  for  the 
present,  but  for  the  iuture;  and  against  such  damages  it  is  proper  to 
set  off  or  allow  for  any  benefits  or  advantages  received  by  the  owner 
of  the  land  in  common  with  others  from  the  construction  of  the  road. 
K.  &  E.  R.  R.  v.  Henry,  79  111.  290. 

637 .  FARM  or  SEVERAL  TRACTS — damages  to  whole  when  proper. 
Where  a  farm  through  which  a  railroad  ran  consisted  of  24U  acres, 
and  the  petition  for  the  condemnation  of  the  right  of  way  described 
the  road  as  running  through  both  the  quarter  section  and  the  80  acre 
piece:  Held,  that  in  assessing  the  damages  the  jury  should  consider 
the  damage  to  the  whole  farm  by  reason  of  the  construction  of  the 
road.    Ib. 

638.  DAMAGE  TO  PART  NOT  TAKEN — land  to  widen  street.    It  is  a 
qiiestion  of  fact  whether  the  diminution  of  a  lot  for  the  purpose  of 
widening  a  street,  impairs  its  value;  and  if  the  taking  of  a  part  of  the 
lot  sensibly  impairs  the  relative  value  of  that  remaining,  the  owner  is 
entitled  to  compensation,  not  oaly  for  the  part  taken,  but  also  as  to 
the  remaining  part.    Hyde  Park  v.  Dunham,  85  111.  569. 

631).  SAME — effect  on  balance  as  a  whole — benefits.  But  in  deter- 
mining whether  the  act  of  diminution  has  impaired  the  relative  value 
of  the  remaining  part,  a  partial  effect  only  is  not  to  be  considered,  but 
the  whole  effect,  and  the  effect  not  upon  any  selected  part  of  the  lot, 
but  the  whole.  In  such  case  it  is  error  to  exclude  the  consideration  of 
special  benefits  to  the  property  not  taken.  Ib. 

640.  DIVIDING  FARM — elements  of  damage.    As  elements  of  dam- 
age, the  fact  that  the  railroad  separates  the  wood,  water  and  timber 
from  the  balance  of  the  farm,  the  inconvenience  to  the  owner  from 
the  perpetual  use  of  the  track  for  moving  trains  over  it,  danger  to 
stock  kept  on  the  farm,  and  many  other  things  may  be  considered,  as 
well  as  the  actual  increase  or  decrease  in  the  market  value  of  the  farm 
occasioned  by  the  road.    Ch.  &  Iowa  R.  R.  v.  Hopkins,  90  111.  316. 

641.  BENEFITS— increase  of  value  by  improvement.    In  estimating 
the  compensation  to  be  paid  for  land  taken  for  a  public  park,  the  jury 
may  consider  the  location  and  situation  of  the  land  at  the  time  of  the 
taking,  without  regard  to  the  possible  increase  of  value  thereafter  by 
reason  of  the  prospective  improvement  in  the  vicinity.    South  Park 
Corns,  v.  Dunlevy,  91  111.  49. 

642.  PARTIAL  TAKING— market  'value  of  part  taken.     In  every 
case  of  a  partial  taking,  the  proper  inquiry  is  as  to  the  true  value  of 
the  part  taken,  without  regard  to  whether  the  remaining  part  is  bene- 
fited or  damaged.    If  the  part  taken  is  of  such  size  and  shape  as  to  be 
available  for  purposes  of  business  or  habitation,  and  by  reason  thereof 
has  a  market  value,  thaf  must  control.    If  it  is  of  such  a  size  and  shape 
as  not  to  be  available  for  either  of  these  purposes,  then  its  relative 
value  as  a  part  of  the  entire  lot,  and  other  considerations  must  be 
looked  to  in  determining  its  actual  value.     Green  v.  Chicago,  97 
111.  370. 

643.  DAMAGES  TO  PART  LEFT — relative  value  as   an   entirety. 
When  the  owner  claims  compensation  for  damages  to  the  part  not 
taken,  its  value  after  such  taking  as  compared  with  the  value  of  the 
en  tire  lot  before  the  taking,  is  not  only  an  important,  but  a  necessary 
factor  in  determining  what,  if  any,  compensation  he  is  to  receive.   Ib. 


76          RAILROADS,  WAREHOUSES, 

644.  BENEFITS— not  allowed  against  value  of  land  taken — meas- 
ure of  value.    Where  land  is  taken  for  a  public  improvement,  the 
compensation  required  to  be  made  to  the  owner  by  both  the  statute 
and  the  constitution,  is  the  value  of  the  land  taken,  without  regard  to 
any  supposed  benefits  or  damages  that  may  result  to  adjacent  property 
by  reason  of  the  proposed  improvement,  and  the  compensation  in  no 
case  should  be  less  than  the  land  will  sell  for  in  a  fair  and  open  mar- 
ket, when  it  has  a  marketable  value.    Ib. 

645.  BENEFITS— location  of  a  highway.    The  owner  of  land  con 
dernned  for  a  highway  is  entitled  to  be  paid  in  money  for  the  full  value 
of  the  land  actually  taken,  and  he  cannot  be  paid  therefor  in  benefits 
to  result  from  the  laying  out  of  the  highway.     As  to  damages  to 
the  remaining  land  he  may  be  thus  compensated.    Hyslop  v.  Finch, 
99  111.  171. 

646.  SAME— railway  in  street — set  off'.    Where  a  lot  is  divided  by  a 
street  through  the  same,  benefits  to  one  part  of  the  property  cannot  be 
set  off  against  damages  to  the  other  part  on  the  other  side  of  the  street 
by  the  laying  of  railroad  tracks  in  the  street  so  as  to  prevent  access  to 
the  same  and  excluding  ordinary  travel  on  the  street.    Pittsburg,  Ft. 
Wayne  &  Ch.  R.  R.  v.  Reich,  101  111.  157. 

647.  To  LESSEE— -future  profits  of  land  too  uncertain.    In  a  pro- 
ceeding to  condemn  land  for  a  right  of  way,  the  jury  allowed  a  lessee 
of  the  land  taken,  whose  lease  had  three  years  to  run,  the  amount  of 
rent  he  was  to  pay  per  acre  for  the  whole  term,  as  to  the  land  con- 
demned, he  contending  that  for  gardening  purposes  it  might  yield 
much  more.    There  was  no  proof  that  it  would  be  used  for  such  pur- 
pose, and  no  other  damages  were  shown,  and  it  appeared  that  the  lessee 
had  the  option  of  terminating  the  lease  at  any  time:    Held,  that  the 
verdict  would  not  be  set  aside  as  against  the  evidence,  and  that  future 
profits  of  the  land  taken  were  too  uncertain  to  be  depended  upon  as  a 
measure  of  damages.    Booker  v.  V.  &  C.  Ry.,  101  111.  333. 

648.  DAMAGES  FOB  TAKING  FOR  A  TELEGRAPH — excessive.  A  tele- 
graph company  sought  to  condemn  a  strip  of  land  18  inches  wide  aad 
3  feet  deep  every  150  feet  from  the  point  of  beginning,  of  sufficient 
width  to  erect  telegraph  poles  to  be  set  along  the  line  of  the  right  of 
way  of  a  railroad  which  was  fenced,  and  the  proof  showed  that  there 
would  be  eleven  poles  on  defendant's  land  which  was  worth  $60  per 
acre.     Three  witnesses  of  the  defendant  testified  that  the  damages 
would  be  $10  a  pole,  arising  from  their  interfering  with  the  use  of 
farming  implements,  while  three  witnesses  for  the  petitioner  testified, 
one  that  fifty  cents,  and  the  other  two,  that  $1  a  pole  would  be  full 
compensation,  and  that  when  the  poles  pursued  the  line  of  the  right 
of  way  of  the  railway  company,  as  m  this  case,  in  their  judgment 
there  could  be  no  other  damage  than  the  value  of  the  land  taken.    It 
also  appeared  that  a  strip  of  land  six  feet  wide  across  the  whole  tract 
would  be  two-tenths  of  an  acre  of  the  value  of  $12  at  $60  per  acre,  and 
such  a  strip  18  feet  wide  would  be  but  six-tenths  of  an  acre,  and  worth 
but  $36.    The  jury  gave  the  defendant  $38.50.    Held,  that  the  verdict 
was  manifestly  too  high.  Hut.  Union  Tel.  Co.  v.  Katkamp,  103  111.  420. 

649.  FARM  LAND— fencing  road  first  six  months.    In  a  proceed- 
ing to  condemn  land  for  a  railroad  across  a  farm,  the  court  instructed 
the  jury  for  the  land-owner,  that  under  the  law,  the  company  was  not 
bound  to  fence  its  road  until  six  months  after  its  completion,  and  that 
in  estimating  the  damages,  the  jury  might  consider  the  damage  the 
keeping  open  of  the  road  for  that  time  would  be  to  the  farm:  Held,  no 
error.    at  L.,  J.&  S.  R.  R.  v.  Kirby,  104  111.  345. 

650.  SAME — farm  thrown  open.     The  inconvenience  of  having 
one's  land  temporarily  thrown  open  in  the  progress  of  constructing  a 


AND  EMINENT  DOMAIN.  77 

railway  over  the  same,  may  be  a  material  element  of  damage  and 
justly  require  compensation.    Ib. 

651.  TRAINING  TRACK— profits  from  nature  of  use.    The  value  of 
a  training  track  which  will  be  destroyed,  is  allowable  as  a  part  of  the 
compensation  to  be  paid  for  the  right  of  way  through  the  farm.    The 
value  of  land  consists  in  its  fitness  for  use,  present  or  future;  and  be- 
fore it  can  be  taken  for  public  use  the  owner  must  have  just  com- 
pensation.   If  he  has  adopted  a  peculiar  mode  of  using  the  land  by 
which  he  derives  profit,  and  he  is  deprived  of  that  use,  justice  requires 
that  he  be  compensated  for  his  loss.    It  is  the  value  which  he  has  and 
of  which  he  is  deprived,  that  must  be  made  good  to  him.    St.  L.,  J.  & 
S.  R.  R.  v.  Kirby,  104  111.  345. 

652 .  BENEFITS— set  off  against  damages.    In  assessing  the  dam- 
ages to  another  portion  of  a  farm,  aside  from  the  value  of  the  land 
taken  for  a  right  of  way  for  a  railroad,  the  jury  should  consider  the 
road  as  running  only  through  the  farm,  and  not  consider  any  general 
benefit  which  the  road  may  prove  in  making  a  better  market  or  con- 
venience for  travel;  and  in  some  cases  they  would  be  justified  in  esti- 
mating the  damages  to  the  farm  the  same  as  though  the  road  com- 
menced on  one  side  of  it  and  ran  across  to  the  other  side  and  no 
further.    Ib. 

653.  FARMLAND — dividing  farm.   The  inconvenience  of  carrying 
on  a  farm  divided  into  two  parts  by  a  railroad,  is  a  legitimate  element 
of  damages  to  be  considered  by  the  jury  in  assessing  damages  for 
right  of  way,  although  such  damages  may  be  largely  conjectural  and 
not  susceptible  of  anything  like  definite  ascertainment.    McReynolds 
v.  B.  &  0.  R.  Ry.,  106  111.  152. 

654.  But  damages  from  danger  in  crossing  the  road  with  teams 
and  from  danger  to  children  and  members  of  the  family  of  the  owner, 
are  so  unreliable  and  uncertain  as  not  to  form  a  proper  basis  in  the 
assessment  of  damages.    The  assessment  should  be  confined  to  such 
damages  only  as  are  reasonably  probable.    Ib. 

655.  BENEFITS — instruction  to  find  only  for -land  taken.    It  is 
not  error  to  instruct  on  the  assessment  of  damages,  that  if  by  the 
construction  of  the  road  the  defendant's  lands  will  be  specially  bene- 
fited, the  jury  should  find  only  the  compensation  for  the  land  actually 
taken,  when  there  is  evidence  on  which  to  base  such  an  instruction. 
McReynolds  v.  B.  &  0.  R.  Ry.,  106  111.  152. 

656.  LAND  TAKEN— cash  value.    In  a  proceeding  to  condemn  land 
for  a  railroad  depot,  the  cash  value  of  the  property  is  the  only  proper 
measure  of  damages.    All  evidence  tending  to  show  that  value  is 
proper,  and  all  evidence  tending  to  enhance  the  damages  above,  or 
reduce  them  below  that  sum.  is  improper.    /.  &  S.  IS.  Ry.  v.  Walsh. 
106  111.  253. 

657.  SAME — elements  of  damages — business  and  profits.    In  such 
a  case,  the  purpose  for  which  the  property  was  used  and  designed,  its 
location  and  advantages  as  to  situation,  are  proper  matters  for  the 
consideration  of  the  jury;  but  the  profits  of  the  business  part,  and 
conjectural  profits  for  the  future,  are  too  speculative  and  uncertain 
upon  which  to  ascertain  the  market  or  cash  value  of  the  property. 
The  evidence  should  be  confined  to  the  market  value  of  the  property, 
and  all  evidence  of  the  amount  of  business  that  was  or  could  be  done 
on  it,  or  the  probable  profits  arising  therefrom,  should  be  rejected.  Ib. 

658 .  COST  OF  IMPROVEMENTS.    The  question  of  the  cost  of  erect- 
ing such  buildings  as  were  upon  the  premises  is  not  an  element  of 
damages,  unless  it  is  shown  that  they  would  actually  increase  the 
value  of  the  premises  to  the  extent  of  their  cost.    Such  improvements 
may  or  may  not  enhance  the  value  of  the  land  to  the  amount  of  their 


78  RAILROADS,  WAREHOUSES, 

cost.  The  true  question  is,  not  what  the  property  cost,  but  for  how 
much  would  it  sell.  Ib. 

859.  LEASEHOLD  PROPERTY — damage  to  property  as  an  entirety. 
Where  a  party  is  using  fourteen  lots  as  an  entirety,  holding  four  of 
them  under  a  lease  for  two  years,  and  owning  the  other  ten,  in  a  pro- 
ceeding to  take  a  portion  of  the  leasehold  lots  for  a  right  of  way,  if 
the  market  value  of  the  whole  tract  is  lessened  for  the  two  years  the 
lease  has  to  run,  the  owner  and  occupant  should  be  allowed  damages 
to  the  extent  that  the  market  value  of  the  entire  property  was  thereby 
depreciated.  Ch.  &  E.  R.  R.  v.  Dresel,  110  111.  89. 

660  SAME— loss  of  profits  in  business.  On  application  to  con- 
demn for  right  of  way  a  part  of  four  lots  held  by  the  defendant  under 
a  lease,  which  lots  were  occupied  by  him  in  connection  with  adjacent 
lots,  of  which  he  was  the  owner,  and  which  were  all  used  in  carrying 
on  an  extensive  hot-bed  system  of  flower  gardening,  the  court 
instructed  the  jury  that  there  could  be  no  recovery  for  loss  of  busi- 
ness or  loss  of  profits:  Held,  correct.  Ch.  &  Evansfon  R.  R.  v.  Dresel, 
110  111.  89. 

661.  Loss  OF  BUSINESS  AND  PROFITS    On  application  to  condemn 
a  part  of  four  lots  held  by  defendant  under  a  lease,  and  which,  with 
other  lots,  are  used  in  carrying  on  a  hot-bed  system  of  flower  gardening, 
no  recovery  can  be  had  for  loss  of  business  or  loss  of  profits.    Ib. 

662.  LAND  TAKEN — market  value — special  use.    The  true  test  is 
the  market  value  of  the  property  taken  for  any  purpose  to  which  it  is 
adapted  or  may  be  applied.    If  the  lots  are  in  use  for  market  garden- 
ing purposes,  and  are  more  valuable  for  that  thao  for  any  other  pur- 
pose, the  owner  has  the  right  to  show  that  fact.    No  error  to  admit 
proof  of  the  value  of  manure  or  compost  on  the  land  per  load.    Ch.  & 
E.  R.  R.  v.  Jacobs,  110  111.  414. 

663 .  The  case  of  L.  8.  &  M.  8.  R.  R.  v.  Ch.  &  W.  Ind.  R.  R.,  100  111. 
21,  fixing  the  damages  for  lots  condemned  for  a  right  of  way  on  a 
different  basis  than  their  market  value,  is  to  be  applied  only  to  prop- 
erty which,  in  its  use  or  condition,  has  no  market  value.    Ib. 

664 .  SAME— market  value — instruction  misleading.  On  the  assess- 
ment of  damages  for  lots  sought  to  be  taken,  the  court  instructed  the 
jury  that  if  they  found  from  the  evidence  that  there  was  no  market 
value  for  such  property  in  such  condition,  they  should  determine  the 
actual  value  from  the*  evidence  in  the  case:  Held,  misleading  and 
erroneous.    The  jury  should  have  been  so  instructed  as  to  direct  their 
inquiry  to  the  market  value  of  the  property.    Ch.&E.  R.  R.  v.  Jacobs, 
110  111.  414. 

665.  STRUCTURE  ON  LAND— -put  on  by  company  tinder  license. 
Where  a  railway  company  under  license  of  the  life  tenant  enters  upon 
land  and  constructs  its  road  over  the  same  with  costly  embankments, 
and  enjoys  the  use  of  the  same  without  objection,  on  the  application 
of  the  company  after  the  termination  of  the  life  estate,  to  condemn  a 
strip  of  land  on  which  such  road  and  structures  are  built,  for  a  right 
of  way,  the  law  will  not  require  it  to  pay  the  owner  of  the  land  for 
the  structures  so  placed  upon  the  same  at  its  own  expense.    C.  &  A. 
R.  R.  v.  Goodwin,  111  111.  273. 

666.  A  railway  company  seeking  a  condemnation  of  land  for  a  right 
of  way  already  occupied  by  it,  is  not  required  by  law  to  pay  the  land 
owner  for  structures  placed  upon  the  land  at  its  own  expense  with  a 
view  of  subsequently  acquiring  the  right  of  way,  even  though  its 
original  entry  may  have  been  without  license  or  tortions.    76. 

667.  80,  in  a  proceeding  by  a  railroad  company  to  condemn  a  strip 
of  land  for  right  of  way  then  and  previously  occupied  by  it,  and  upon 
which  strip  the  company  had  before  constructed  its  road,  consisting  of 


AND  EMINENT  DOMAIN.  79 

costly  embankments  and  structures,  the  court  instructed  the  jury  that 
in  e?timating  the  compensation  of  the  owner,  they  should  consider 
the  whole  property,  including  all  the  structures  upon  it,  as  well  as  the 
soil  to  which  they  were  affixed,  and  award  such  sum  as  compensation 
as  said  property  was  reasonably  worth  for  the  purpose  for  which  it 
was  intended,  although  of  no  practical  value  to  the  land  owner  in  con- 
nection with  his  farm:  Held,  that  the  instruction  was  erroneous  in 
requiring  more  than  a  just  compensation.  Ib. 

668.  TRESPASS — no  damages  for.    In  a  proceeding  to  condemn 
land  for  a  right  of  way,  the  land  owner  cannot  recover  damages  for  a 
prior  trespass  by  entering  upon  his  premises.    Ib.  and  L.  B.  &  M.  R. 
R.  v.  Winslow,  66  111.  219. 

669.  LAND  FOB  DEPOT — special  value  beyond  market.    On  a  pro- 
ceeding to  condemn  lots  for  a  depot  and  other  railroad  uses,  the  defend- 
ant offered  to  prove  that  the  property  had  a  special  value  beyond  its 
general  market  value,  and  also  that  certain  prices  had  been  offered  for 
the  property  within  a  few  months  of  the  time  of  the  trial,  above  the 
general  market  value,  all  of  which  was  excluded:  Held,  that  the  court 
erred  in  excluding  the  proposed  evidence.    Johnson  v.  Freeport  & 
Miss.  River  Ry.,  Ill  111.  413. 

670.  If  property  has  a  special  value  from  any  cause  that  value 
belongs  to  the  owner,  and  he  is  entitled  to  be  paid  it  by  the  party  seek- 
ing condemnation.    Ib. 

671.  LAND  TAKEN — improvements  on.     If  the  land  sought  has 
upon  it  an  improvement  which  materially  adds  to  its  market  value, 
the  owner  will  have  the  right  to  show  its  character  and  extent  and  its 
value,  for  the  purpose  of  enhancing  its  market  value.    The  market 
value  is  not  confined  to  any  one  particular  use,  but  the  value  for  any 
purpose  for  which  the  land  may  be  adapted,  may  be  shown.    De  Buol 
v.  Freeport  &  Miss.  River  Ry.,  Ill  111.  499. 

672.  SAME — abandoned  improvements  of  another  company.  Where 
some  grading  and  excavations  have  been  made  on  defendant's  land  by 
a  different  railway  company  and  abandoned,  and  such  improvement  is 
sought  to  be  taken  in  a  proceeding  to  condemn,  it  is  error  to  refuse  to 
allow  the  defendant  to  testify  how  many  cubic  yards  of  grading  and 
filling  are  on  the  land,  and  the  present  value  of  the  grading  and  filling 
on  the  line  of  the  proposed  road  over  his  land.    Ib. 

673.  SAME — value  to  owner.    The  value  of  the  land  to  the  railroad 
company  seeking  its  condemnation,  is  not  a  matter  to  be  considered  in 
estimating  the  damages  to  be  allowed,  as  the  value  of  the  land  to  the 
petitioner,  whether  great  or  small,  cannot  affect  the  true  compensation 
which  the  owner  is  entitled  to  receive.    Ib. 

674.  SAME — market  value — uses  of  land— profits.     In  ordinary 
cases  the  question  to  be  determined  is  the  market  value  of  the  land  to 
be  taken,  and  in  order  to  arrive  at  that  value,  it  is  proper  to  show  that 
the  land  is  valuable  for  grazing,  for  raising  corn,  wheat,  oats,  grapes 
or  any  otht  r  product  for  which  it  may  be  used;  but  the  probable 
profits  arising  from  a  wine  cellar  or  otherwise,  are  too  remote.    Ib. 

675.  So,  in  a  proceeding  to  condemn  land  used  as  a  farm  and  a 
vineyard,  it  is  proper  to  instruct  the  jury  not  to  take  into  considera- 
tion the  profits  of  the  land-owner  in  his  business,  in  estimating  the 
damages.    Ib. 

676.  Where  the  proposed  right  of  way  took  the  defendant's  wine 
cellar,  the  court  refused  to  let  him  testify  what  damage  he  would 
suffer  by  the  taking  of  his  cellar,  but  he  was  allowed  to  testify  to  the 
value  of  his  land  for  any  and  all  purpises:  Held,  no  error  in  refusing 
the  evidence  as  to  the  cellar.    Ib. 


80  BAILROADS,  WAREHOUSES, 

677.  FARM  LAND — incidental  damages — dividing  farm.    Where 
a  strip  oi'  land  through  a  farm  is  sought  to  be  condemned,  it  is  error 
to  instruct  the  jury  that  "  incidental  damages  "  should  not  be  consid- 
ered by  them,  as  being  calculated  to  confine  the  jury  to  the  value  of 
the  land  actually  taken.    Damages  may  be  allowed  where  one  part  of 
a  farm  is  cut  off  from  the  other,  and  where  it  is  rendered  more  incon- 
venient to  reach  a  highway.    Such  damages  may  be  regarded  as  inci- 
dental.   Ib. 

678.  LAND  TAKEN — market  value — instruction  where  it  has  none. 
Where  the  property  has  a  market  value  and  is  not  devoted  to  any  par- 
ticular use  making  it  more  valuable  to  the  owner  than  to  any  one 
else,  such  value  affords  the  true  measure  of  compensation;  but  where 
the  proof  tends  to  show  the  property  has  no  market  value  by  reason 
of  the  particular  use  to  which  it  is  applied,  it  is  error  to  instruct  the 
jury  that  the  compensation  should  not  be  more  nor  less  than  its  fair 
market  value,  and  to  refuse  all  instructions  based  on  the  theory  it  has 
no  market  value.     Ch.  &  N.  W.  Ry.  v.  Ch.  &  E.  R.  R.,  in  111.  589. 

679.  SAME — no  market  value — value,  how  found.    Where  there  is 
no  market  value  of  a  piece  of  property  by  reason  of  its  being  used 
with  and  as  a  part  of  some  extensive  business  or  enterprise,  its  value 
must  be  determined  by  the  uses  to  which  it  is  applied.    In  such  case 
the  market  value  of  neighboring  lands  differently  circumstanced  may 
be  Shown  as  throwing  some  light  on  the  question,  but  it  falls  far  short 
of  furnishing  a  true  or  adequate  test  of  the  value  of  the  property.  Ib. 

680.  FARM  LAND— /arm  crossings.    In  condemning  land  for  right 
of  way  for  a  railroad  across  a  farm,  the  necessities  and  conveniences 
of  location  for  farm  crossings  should  be  taken  into  consideration;  and 
after  the  condemnation  they  will  be  presumed  to  have  been  consid- 
ered, and  that  damages  were  estimated  upon  the  hypothesis  that  a 
farm  crossing  would  not  be  constructed  and  maintained  at  any  par- 
ticular point  where  it  would  directly  and  seriously  affect  the  safe  and 
efficient  operation  of  the  road,    dialer  aft  v.  L.,  E.  &  St.  L.  R.  R.,  113 
111.  86. 

681.  LAND  TAKEN— market  value.    The  measure  of  damages  for 
land  taken  is  its  cash  value  at  the  time  of  the  filing  of  the  petition,  if 
it  has  a  market  value.    Dupuis  v.  Ch.  &  N.  W.  Ry.,  115  111.  97. 

682.  SAME— profits— uses,  as  adding  to  value.    It  may  be  true  that 
the  supposed  profits  arising  from  the  business  carried  on  upon  the  lands 
taken  are  not  proper  elements  of  damages,  but  it  is  also  true  that  in 
determining  the  market  value  of  such  lands  it  is  proper  for  the  jury 
to  consider  the  purposes  for  which  the  lands,  were  used,  and  in  so  far 
as  the  particular  use  to  which  the  lands  were  or  had  been  appropri- 
ated, added  to  their  market  value.    An  instruction  which  confuses 
these  elements,  and  excludes  both,  is  erroneous.    Dupuis  v.  Ch.  &  N. 
Wis.  Ry.,  115  111.  97. 

683.  No  MARKET  VALUE— worth  of  special  use.     The  correct 
measure  of  damages  of  land  condemned  is  its  market  value,  if  it  has 
one.    But  if  devoted  to  some  particular  use  which  gives  it  an  intrinsic 
value,  the  owner  is  entitled  to  receive  its  worth  for  such  use  or  pur- 
pose.   Ib. 

684.  LAND  TAKEN — cash  value  depending  on  use.     In  order  to 
determine  the  fair  cash  value  of  the  lands  taken,  the  jury  may  con- 
sider the  purpose  for  which  they  are  used — whether  they  are  adapted 
to  that  use,  and  whether  they  are  valuable  or  profitable  for  that  use — 
and  in  so  far  as  such  use  adds  to  their  market  value,  this  may  be  con- 
sidered.   Ib. 

685.  DAMAGE  TO  PART  NOT  TAKEN—  difference  in  value.    When 
other  land  of  a  party  not  sought  to  be  taken  is  damaged  by  the  right 


AND  EMINENT  DOMAIN.  81 

of  way,  the  measure  of  damages  as  to  it  is  the  difference  between  its 
value  before  and  after  the  construction  of  the  road.    Ib. 

686.  LAND  TAKEN— strip  as  of  the  value,  of  the  whole.    A  strip  of 
land  often  has  a  greater  value  as  a  part  of  the  large  tract  of  which  it 
is  a  part  than  when  considered  alone;  and  it  is  proper  for  the  court  to 
tell  the  jury  that  if  they  find  from  the  evidence  that  such  is  the  case  to 
allow  such  larger  value  in  assessing  the  damages.    C.  &  E.  R.  It.  v. 
Blake,  116  111.  163. 

687.  PARTIAL  TAKING— value  as  part  of  the  whole.    Where  the 
part  of  the  lot  sought  to  be  taken  is  of  greater  value  as  a  part  of  the 
entire  lot  than  as  a  distinct  part,  its  compensation  should  be  its  fair 
cash  value  when  considered  in  its  relation  to  and  as  a  part  of  the 
whole  lot.    Ib. 

688.  BENEFITS— only  special,   set   off.     Benefits   or   advantages 
which  may  accrue  to  the  part  not  taken,  in  common  with  all  other 
lands  along  the  proposed  railroad,  cannot  be  set  off  or  deducted  from 
the  compensation  for  the  property  taken  and  damaged.    Ch.  &  JEvan- 
ston  R.  R.  v.  Blake,  116  111.  163. 

689 .  The  question  of  damages  in  a  condemnation  proceeding  is  to 
be  determined  with  reference  to  the  special  benefits  only  to  the  prop- 
erty not  taken.    Any  mere  general  and  public  benefit  or  increase  of 
value  received  by  the  land  in  common  with  other  lands  in  the  neigh- 
borhood, is  not  to  be  taken  into  consideration  in  assessing  the  dam- 
ages.   Hyde  Park  v.  Washington  Ice  Co.,  117  111.  233. 

690.  DAMAGES — destruction  of  pond  for  use  of  mill.    In  a  pro  - 
ceeding  to  condemn  a  strip  of  land  for  a  railroad  track  which  crossed 
a  pond  supplying  the  owner's  steam  mill  with  water,  on  the  question 
of  damages  to  property  not  taken,  the  defendant  gave  evidence  on  the 
basis  that  the  pond  would  be  destroyed  as  a  source  of  supply  of  water 
for  his  mill,  and  there  would  be  no  other  means  of  such  supply.    The 
petitioner  then  offered  to  show  that  a  certain  waterworks  company 
would  furnish  the  mill  regularly  with  all  the  water  it  might  require 
at  a  less  cost  than  that  of  pumping  from  the  pond,  and  also  that  a 
creek  flowing  nearer  the  mill  than  the  pond  had^  a  capacity  to  furnish 
better  water,  and  an  abundance  for  the  use  of  the  mill,  which  the 
court  refused  to  admit:  Held,  that  the  court  erred  in  refusing  the 
evidence.    III.  &  St.  L.  R.  R.  &  Coal  Co.  v.  Switzer,  117  111.  399. 

691.  FOB  PROPERTY  PARTIALLY  TAKEN — special  use  as  apondfor 
ice.    In  a  proceeding  to  condemn  a  strip  of  land  for  a  street  through 
premises  made  into  a  pond  for  freezing  ice  thereon,  the  proof  showing 
that  the  property  could  not  be  devoted  to  any  other  use  without  a  cost 
much  in  excess  of  its  value,  the  court  instructed  the  jury  to  ascertain 
from  the  evidence,  after  their  own  view,  the  fair  market  value  of  the 
property  sought  to  be  taken,  and  also  the  damages  to  the  property  from 
which  the  strip  was  to  be  taken,  and  that  if  they  believed  from  the 
evidence  the  property  of  the  defendant  in  its  (then)  present  condition, 
had  a  special  capacity  as  an  entirety  for  the  purpose  of  ice  freezing, 
cutting  and  transporting,  and  as  an  entirety  was  devoted  to  such  pur- 
poses, and  that  the  value  of  such  tract  would  be  depreciated  and  les- 
sened by  the  taking  of  the  strip,  then  the  owners  of  the  property  were 
entitled  to  receive  a  sum  equal  to  such  depreciation  in  value.    Held 
correct.    Hyde  Park  v.  Washington  Ice  Co.  117  111.  233. 

692.  ENTIRE  TRACT  TAKEN — injury  to  business — cost  of  removal. 
Where  an  entire  lot  of  ground  upon  which  the  owner  is  engaged  in 
business  is  condemned  for  the  use  of  a  railway  company,  the  cost  and 
inconvenience  of  a  removal  of  the  business  to  some  other  place,  are 
proper  elements  of  compensation.    C.  M.  &  St.  P.  Ry.  v.  Hock,  118 
111.  587. 

-7 


82  RAILROADS,  WAREHOUSES, 

693.  SAME — market  value.     Where  an  entire  strip  of  land  is  taken 
for  railroad  purposes  so  that  the  owner  has  no  adjoining  property  to 
be  damaged,  the  measure  of  compensation  is  the  market  value  of  the 
property.    Ch.  E.  &  L.S.  R.  R.  v.  Catholic  Bishop,  119  111.  525. 

694 .  SAME— particular  use  of  the  property.    When  the  owner  of 
land  elects  to  use  it  for  one  purpose  rather  than  another,  or  assumes  a 
restriction  as  to  the  character  of  use  he  will  permit,  in  no  \^ise  bind- 
ing on  him  by  the  nature  of  his  tenure,  this  will  not  prevent  his  recov- 
ing  in  a  proceeding  to  condemn  the  same,  its  value,  from  its  capacity 
and  adaptability  for  other  uses.    Ib. 

695 .  So,  in  determining  the  market  value  of  land  sought  to  be 
taken,  reference  may  be  had  not  merely  to  the  uses  to  which  the  land 
is  actually  applied,  but  its  capacity  for  other  uses,  so  far  as  the  same 
may  be  shown  by  the  evidence.    Ib. 

696.  COMPENSATION — when  governed  by  particular   use  of  the 
property.    When  the  owner  of  land  is  restricted  by  statute  or  by  the 
provisions  of  the  deed  under  which  he  holds  title,  or  in  any  other  bind- 
ing way,  to  a  particular  use  of  it,  so  that  he  cannot  lawfully  apply  it  to 
any  other  use,  the  measure  of  his  compensation  will  be  its  value  to 
him  for  suoh  special  use.    Ib. 

697.  SAME— to  a  tenant.    A  verdict  in  a  proceeding  to  condemn 
land,  which  gives  a  tenant  in  possession  of  a  part  of  the  premises  the 
full  value  of  his  improvements  thereon,  and  also  allows  him  to  remove 
the  same,  is  so  manifestly  unjust  as  to  call  for  a  reversal.    Ib. 

698.  BENEFITS — against  land  taken.    Since  the  present  constitu- 
tion came  into  force,  the  statute  allowing  the  jury  to  consider  or  disre- 
gard benefits  to  the  owner  in  the  matter  of  laying  out  roads,  does  not 
apply  to  the  matter  of  damages  for  taking  the  land.  Deitrick  v.  High- 
way Comrs.,'ft  Bradw.  70. 

699.  FARM  LAND — dividing  same.  When  a  railroad  crosses  a  farm, 
the  inconvenience  in  operating  the  farm  thus  divided,  is  proper  to  be 
considered  in  fixing  the  damages  to  the  part  not  taken.  L.,  E.  &  St.  L. 
Ry.  v.  Chalcraft,  14  Bradw.  516. 

700.  TENANT  —good  will  in  business.    Whether  a  tenant  will  be 
entitled  to  damages  for  loss  of  good  will  in  his  business,  is  not  decided. 
If  the  jury  are  of  the  opinion  that  the  evidence  establishes  any  dam- 
ages of  that  character  they  may  possibly  assess  them  in  a  separate 
item;  but  evidence  of  such  damages  cannot  be  resorted  to  in  support 
of  a  general  assessment  of  damages  for  other  items  of  property  taken. 
Chicago  v.  ffarrity,!  Bradw.  474. 

701.  OBSTRUCTING  STREET — elements  of  damages — condemning 
railroad  track.    In  condemning  a  right  of  way  across  a  previously 
constructed  railroad  in  a  street,  the  total  obstruction  of  the  old  road 
while  the  tracks  of  the  new  one  are  being  laid,  and  the  permanent 
interference,  by  means  of  the  crossing,  with  the  business  of  the  old 
road,  are  proper  elements  of  damages.    Ch.  <&  W.  Ind.  JR.  R.  v.  Ch.,  St. 
L.  &  P.  R.  R.,  15  Bradw.  587. 

702.  ADDITIONAL  DAMAGES— change  of  plan.    Land  owner  has  a 
claim  for  additional  damages  caused  by  a  material  change  of  the  work. 
W.,  St.  L.  &  P.  Ry.  v.  McDougall,  118  111.  229;  /.  &S.  R.  R.  v.  Kidder, 
21  111.  131;  P.  &  R.  I.  R.  R.  v.  Birkett,  62  111.  332. 

703.  DAMAGES  TO  TENANT.    A  tenant  whose  term  expires  during 
the  proceeding,  and  whose  lease  secures  him  no  right  of  renewal,  can- 
not acquire  any  new  rights  in  the  property  adverse  to  the  petitioner. 
Any  rights  acquired  by  him  thereafter  are  subordinate  to  the  rights  of 
the  petitioner.    Schretber  v.  Ch.  t&Bsanston  R.  R.,  115  111.  340. 

704.  SAME.    If  property  is  taken  before  the  expiration  of  the  term, 


AND  EMINENT  DOMAIN.  83 

the  tenant  is  entitled  to  compensation  therefor,  but  if  he  enjoys  the 
property  for  the  entire  term  before  compensation  paid,  he  will  be  enti- 
tled to  none.  Il>. 

705.  DAMAGE  BEFORE  ASSESSMENT— lawful  acts— remedy.  Where 
a  railway  company  in  exercising  the  right  of  eminent  domain,  com- 
mits an  injury  to  the  land  of  another,  by  entry  upon  it  to  make  pre- 
liminary surveys,  or  by  taking  materials /therefrom,  or  the  like,  in 
pursuance  of  £he  powers  vested  in  it,  and  the  law  under  which  it  acts, 
prescribes  a  mode  of  assessing  damages  for  such  injuries,  an  action  of 
tort  will  not  lie  therefor,  but  the  statutory  remedy  must  be  pursued. 
But  this  is  only  where  the  authority  conferred  has  been  followed. 
Smith  v.  Ch.,  A.  &  St.  L.  R.  R.,  67  111.  191. 

706.  DISTINCTION  BETWEEN  COMPENSATION  AND  BENEFITS.    The 
act  of  1877,  concerning  roads  and  bridges  in  counties  under  township 
organization,  as  respects  the  matter  of  awarding  compensation  and 
assessing  benefits,  makes  no  discrimination  between  the  value  of  the 
land  actually  taken  and  damages  otherwise  resulting  to  the  land  owner 
in  consequence  of  laying  a  highway.    But  the  eminent  domain  act  of 
1874  does  make  such  discrimination  and  is  to  be  construed  in  pari 
mater  ia  with  the  former  act,  supplementing  the  same.    Hyslop  v. 
Finvh,  99  111.  171. 

707.  FARM  LAND— fencing.    In  a  proceeding  by  a  railway  com- 
pany to  condemn  a  right  of  way  through  farm  land,  it  is  proper  for 
the  court  to  instruct  the  jury  that  the  company  is  not  required  to  fence 
its  road  for  six  month?  after  the  same  is  open  for  use,  and  that  the 
damages  attending  the  keeping  open  of  the  right  of  way  for  that  length 
of  time,  may  properly  be  considered  as  an  element  of  damages.    Cen- 
tralin  &  Chester  R.  R.  v.  Rixman,  12 1  111.  214. 

708.  BENEFITS.    It  is  competent  to  consider  special  benefits  to 
property  claimed  to  be  damaged,  but  not  taken,  for  the  purpose  of 
reducing,  or  rather  to  the  extent  of  the  special  benefits,  of  showing 
there  are  no  damages.    Concordia  Gem.  Asso'c.  v.  Minn.  N.  W.  R.  R., 
121  111.  199. 

709.  SAME— instruction.    Where  the  court  instructed  the  jury  that 
the  defendant  was  entitled  as  compensation  to  the  cash  market  value 
of  his  land  sought  to  be  taken  as  of  the  date  of  the  petition,  and  dam- 
ages to  the  remainder  of  his  land  described  in  his  cross  petition,,  and 
then  instructed  that  the  total  compensation  and  damages  to  which  the 
defendant  was  entitled,  must  be  equal  to,  but  must  not  exceed  the 
difference  between  the  fair  market  value  of  the  whole  land  described 
in  the  petition  and  cross  petition  as  it  was  on  the  date  of  the  petition, 
and  the  fair  market  value  of  what  remained  after  the  taking  of  part  by 
the  petitioner  and   the  appropriation  thereof  to  its  use.    The  jury 
awarded  $2,880  for  the  land  taken  and  $6,450  for  damages  to  land  not 
taken:    Held,  that  it  must  be  presumed  that  the  $6,450  was  in  excess 
of  any  and  all  special  benefits  to  the  lands  damaged  and  not  taken, 
and  consequently  no  benefits  were  allowed  against  the  value  of  the 
land  taken.    Ib. 

710.  MARKET  VALUE.    The  proper  measure  of  damages  in  the 
case  of  the  location  of  a  railroad  over  a  farm,  is  the  actual  fair  cash 
value  of  the  land  taken  and  the  decrease  in  the  actual  fair  cash  value 
of  that  not  taken.    Kiernan  v.  Ch.,  Santa  Fe  &  Cal.  Ry.,  —  111.  — . 
Filed  Nov.  11,  1887. 

711.  BASIS  OF  ASSESSMENT.    In  assessing  the  value  of  land  taken, 
and  the  damage  to  the  remaining  part,  the  jury  should  not  assess  the 
same  on  the  basis  of  what  the  owner  would  take  for  the  same  or  any 
part  thereof,  or  what  the  jury  would  take  if  they  were  the  owner.    Ib. 

712.  DAMAGES  TO  PART  NOT  TAKEN — speculative.    In  assessing 


84  EAILEOADS,  WAREHOUSES, 

the  damages  to  the  land  not  taken,  the  jury  should  not  take  into  con- 
sideration anything  as  an  element  of  damages  which  is  remote,  imag- 
inary or  speculative,  even  though  testified  to  by  witnesses.  The  only 
elements  they  should  consider  are  those  which  are  appreciable  and 
substantial,  and  which  will  actxially  lessen  the  market  value  of  the 
land,  and  the  jury  may  be  so  instructed.  Ib. 

713.  MARKET  VALUE.    The  fair  market  value  of  land  proposed  to 
be  taken,  having  proper  regard  to  the  location  and  advantages  as  to 
situation  and  the  purposes  for  which  it  was  designed  and  used,  is  the 
proper  measure  of  compensation.    6".,  B.  &  Q.  R.  R,  v.  Bowman,  — 
111.  — .    Filed  Nov.  11,  1887. 

714.  PART  TAKEN  HAVING  A  VALUE  AS  A  WHOLE.    Where  a  part 
is  taken,  and  that  part  has  a  greater  value  in  connection  with  the 
whole  than  as  a  separate  parcel,  the  measure  of  damages  will  be  the 
fair  cash  value  of  the  part  taken,  as  a  part  of  the  whole.    Ib. 

715.  DAMAGES  TO  THE  PART  NOT  TAKEN.    On  cross  petition. 
Where  a  cross  petition  is  filed  for  damages  to  land  not  sought  to  be 
taken,  the  jury  should  award  to  the  owner  such  damages  in  cash  as 
his  lands  not  taken  will  sustain,  if  any,  by  the  construction  of  the 
proposed  railroad  and  its  continued  use  and  operation  through  his 
farm.    In  such  case  it  is  proper  for  the  jury  to  give  damages  for  all 
actual  and  appreciable  injuries  resulting  from  the  construction  and 
operation  of  the  road.    C.,  B.  &  Q.  R.  R.  v.  Bowman,  —  111.  — .    Filed 
Nov.  11,  1887.  _ 

716.  SAME — difference  in  market  value.    If  the  land  not  taken 
will  be  depreciated  in  value,  the  measure  of  damages  will  be  the  dif- 
ference in  their  market  value  before  and  after  the  construction  of  the 
road.    In  determining  this,  the  jury  may  consider  the  injury  to  the 
land  arising  from  inconveniences  actually  brought  about  by  the  con- 
struction of  the  proposed  road,  or  incidentally  produced  by  dividing 
the  land  as  to  water,  pastures  and  improvements,  although  such 
injury  may  not  be  susceptible  of  definite  ascertainment,  and  also  for 
such  incidental  injury  as  will  result  from  the  perpetual  use  of  the 
track  for  moving  trains,  or  from  danger  of  killing  stock,  or  escape  of 
fire,  and  generally  for  such  damages  as  are  reasonably  probable  to 
ensue  from  the  construction  and  operation  of  the  road.    Ib. 

717.  EVIDENCES  or  DAMAGE.    The  physical  condition  of  land  over 
which  a  right  of  way  is  sought  for  a  railroad,  whether  effected  by 
another  railroad,  a  water  course,  or  other  natural  or  artificial  object, 
must  be  considered,  not  in  respect  to  the  damage  or  depreciation 
caused  by  such  other  railroad,  water  course,  <fec.,  but  for  the  purpose 
of  determining  the  damages  occasioned  to  the  owner  by  the  proposed 
improvement.    Ib, 

718.  While  it  is  true  that  only  real,  tangible  and  proximate  dam- 
ages are  recoverable,  yet  it  is  all  such  damages  as  are  reasonably  prob- 
able, as  distinguished  from  possible,  speculative  or  remote  damages 
that  form  the  proper  basis  of  recovery.    Ib. 

719.  CASH  VALUE — basis  of  assessment.    In  a  proceeding  to  con- 
demn for  a  public  use  the  compensation  and  damages  to  be  awarded 
the  owner  must  be  based  upon  the  fair  cash  value  of  the  land  at  the 
time  of  the  comdemnation.    Col.  Riv.  Ry.  v.  Moore,  —  111.  — .    Filed 
March  26,  1888. 

720.  ASSESSMENT— makers  for  the  finding  of   the  jury.     The 
questions  ordinarily  to  be  found  by  the  jury  are:    (1)  What  is  the 
present  market  value  of  the  land  taken;  and,  (2)  to  what  extent,  if  at 
all,  will  the  remainder  of  the  tract  be  depreciated  in  its  market  value 
by  reason  of  the  appropriation  of  the  part  taken  for  the  proposed  use. 
Cal.  Rio.  Ry.  v.  Moore,  —  111.  — .    Filed  March  26,  1888. 


AND  EMINENT  DOMAIN.  85 

721.  USES  AND  CAPABILITIES — an  element  of  value.     The  com- 
pensation is  to  be  estimated  with  reference  to  the  uses  for  which  the 
property  is  suitable  in  its  then  condition,  having  regard  to  its  loca- 
tion, situation  and  quality,  and  to  the  business  wants  in  that  locality, 
or  such  as  may  reasonably  be  expected  in  the  near  future.    Cal.  Riv. 
Ry.  v.  Moore,  —  111.  — .    Filed  March  26,  1888. 

722.  PROSPECTIVE  VALUE— possible  future  demand— too  remote. 
If  lots  abutting  upon  a  river  are  suitable  for  dock  purposes,  of  which 
there  is  no  present  demand,  their  value  when  improved  by  the  build- 
ing of  docks,  the  profits  that  may  be  derived  therefrom,  or  the  value 
of  the  lots  at  some  future  time,  as  when  business  or  the  wants  of  the 
community  may  make  profitable  the  making  of  docks  or  slips  in  the 
lots,  is  merely  conjectural  and  remote,  forming  no  proper  element  in 
estimating  the  damages  to  be  paid.    Cal.  Riv.  Ry.  v.  Moore,  —  111. 
— .    Filed  March  26, 1888. 

723.  WHEN  FUTURE  USE  MAY  FORM  AN  INGREDIENT  OF  VALUE. 
If  the  fact  that  lots  are  located  with  a  frontage  on  a  river,  at  a  place 
where  they  can  at  some  future  time,  when  demanded,  be  made  avail- 
able as  dock  property,  enhances  their  present  market  value  in  their 
present  condition  and  state  as  to  improvement,  that  fact  will  be 
proper  to  be  shown  and  considered  by  the  jury  011  the  assessment  of 
the  damages.    Ib. 

724.  In  such  case  it  can  make  no  difference  that  there  may  be  no 
present  demand  for  docks  upon  the  lots,  if  in  consequence  of  their 
supposed  adaptation  to  such  use  they  have  an  increased  market  value 
above  what  they  otherwise  would  have.    Such  value  may  form  a 
proper  basis  of  a  recovery.    J6. 

OF  THE  EVIDENCE  ON  ASSESSMENT. 

725.  VALUE  OF  LOTS— opinions  of  witnesses.    Lands  and  city  lots 
have  no  standard  value,  and  to  arrive  at  their  proper  valuation  it  is 
right  to  take  the  opinion  of  witnesses  and  to  hear  the  facts  upon 
which  such  opinions  are  founded.    /.  &  W.  R.  R.  v.  Von  Horn,  18 
111.  257. 

726.  WITNESSES— credibility  and  weight.    In  estimating  damages 
for  a  right  of  way  across  a  farm,  where  there  is  a  conflict  of  evidence 
as  to  the  damages,  the  jury  will  be  justified  in  giving  greater  weight 
to  the  testimony  of  farmers  than  to  that  of  persons  engaged  in  other 
pursuits.    /.,  A.  &  St.  L.  R.  R.  v.  Caldwell,  21  111.  75. 

727.  PLANS  AND  ESTIMATES— of  work.    On  an  assessment  of  dam- 
ages resulting  from  the  construction  of  a  railroad  over  a  farm,  the 
plans  and  estimates  of  the  company  for  that  part  of  the  road  should 
be  admitted  in  evidence.    /.  &  8.  R.  R.  v.  Kidder,  21  111.  131. 

728.  The  company  will  be  bound  to  construct  the  road  substan- 
tially according  to  the  plans  and  estimates  thus  given  in  evidence. 
Should  it  deviate  from  them  so  as  to  cause  additional  damages,  they 
may  be  recovered  by  the  land-owner  in  an  action  on  the  case,  or  a 
court  of  equity  may  enjoin  the  work  until  such  damages  are  assessed 
and  paid.    /&. 

729.  PLANS — explaining.    The  engineers  and  officers  of  a  railway 
company  on  the  assessment,  may  be  examined  for  the  purpose  of  ex- 
plaining the  plans  and  estimates  for  the  construction  of  the  road.   Ib. 

730.  VERBAL  PROMISES  OF  AGENTS.    The  verbal  representations 
and  promises  of  the  engineer  of  the  company  and  others,  which  may 
not  be  binding  on  the  company,  should  not  go  to  the  jury  to  influence 
their  finding,  unless  sworn  to  and  in  proper  explanation  of  the  plans 
for  constructing  the  road.    Ib. 


86  KAILBOADS,  WAREHOUSES, 

731.  CONTRACT  TO  FENCE  ROAD.   It  is  error  to  refuse  evidence  on 
the  part  of  the  petitioner  that,  at  the  time  of  the  trial,  it  was  in  the 
act  of  building  a  fence  along  its  right  of  way;  that  the  lumber  and 
posts  were  on  the  ground  and  the  contract  let  to  build  the  fence,    tit. 
L~,  J.  &  Ch.  R.  R.  v.  Mitchell,  47  111.  165. 

732.  STIPULATION  TO  BUILD  DEPOT.    A  stipulation  of  a  railway 
company  seeking  a  condemnation,  that  it  will  erect  a  depot  near  the 
land,  is  admissible  in  evidence  in  behalf  of  the  company,  although  the 
location  of  the  depot  had  not  been  fixed  before  the  trial.    Hayes  \.  <>. 
O.  &  Fox  River  Valley  R.  R.,  54  111.  373. 

733.  OPINIONS  OF  WITNKSSES — as  to  benefits.    Upon  the  question 
of  damages  and  benefits  arising  from  the  constructicn  of  a  railroad 
over  a  tract  of  land,  the  opinions  of  witnesses  are  admissible  as  to  the 
benefits  that  will,  probably  result  to  the  land  by  the  location  of  a  depot 
within  a  certain  distance  of  it.    Ib. 

734.  CHANGE  OF  PLANS— additional  damages.  The  company  must 
construct  its  road  as  indicated  by  its  maps  and  plans  introduced  on 
the  trial.    A  subsequent  alteration  will  give  the  land-owner  the  right 
to  recover  for  damages  resulting  therefrom.    P.  &  R.  I.  R.  R.  v.  Bir- 
kett,  62  111.  332. 

735.  CROSS-EXAMINATION— as  to  other  matters.    A  witness  having 
testified  to  the  damages  to  a  particular  tract  of  land  touched  by  the 
track  of  a  railroad  company,  cannot  on  cross-examination  be  required 
to  testify  to  the  effect  upon  other  tracts  owned  by  the  same  party.  P., 
P.  &  J.  R.  R.  v.  Laurie,  63  111.  264. 

736.  OF  TRESPASS  AND  VIOLENCE.    On  the  assessment  of  damages 
for  the  right  of  way,  it  is  error  to  admit  evidence  of  the  violent  entry 
upon  the  premises  by  the  agents  and  servants  of  the  company,  show- 
ing a  willfull  trespass,  and  the  error  is  not  cured  by  instructing  the 
jury  to  disregard  it.    L.  B.  d-r  M.  R.  R.  v.  Winslow,  66  111.  219. 

737.  OPINIONS  AS  TO  v  A  LUIS.    In  a  proceeding  to  condemn  land 
and  city  lots  for  railway  purposes,  it  is  necessary  and  proper  to  take 
the  opinions  of  witnesses,  and  to  have  the  facts  upon  which  such  opin- 
ions are  founded,  to  enable  the  jury  to  fix  the  compensation.    Ib. 

738.  Where  witnesses  are  allowed  without  objection  to  give  their 
opinions  as  to  the  extent  of  the  damages  in  a  proceeding  to  condemn, 
as  well  as  to  testify  to  the  facts,  the  jury  may  rightfully  consider  such 
evidence.    R.,  R.  t.  &  St.  L.  R.  R.  v.  Coppinyer,  66  111/510. 

739.  DEEDS— as  evidence  of  value.     Where  the  land-owner  gave  in 
evidence  the  deeds  for  his  land,  it  was  held  no  ground  for  reversal  to 
instruct  the  jury  for  the  petitioner  that  they  could  take  into  account 
the  consideration  recited  in  the  deeds  in  determining  the  value  of  the 
land  taken.    If  the  land  had  been  recently  purchased,  the  price  paid 
might  tend  to  enlighten  the  jury  upon  that  issue.    Jones  v.  C.  &  I.  R. 
R.,  68  111.  380. 

740.  VIEW  OF  LAND — treated  as  evidence— instruction.    In  a  pro- 
ceeding to  condemn  land  for  a  right  of  way,  under  a  law  allowing  the 
jury  to  view  the  premises,  it  is  not  improper  to  instruct  the  jury  to 
fix  the  compensation  from  the  evidence,  as  the  facts  learned  by  the 
examination  is  part  of  the  evidence  upon  which  the  jury  may  act. 
P.  A.  &  D.  R.  R.  v.  Sawyer,  71  111.  361. 

741.  OPINIONS  OF  WITNESSES— as  to  damages.   Witnesses  may  give 
their  opinion  as  to  the  amount  of  damages  occasioned  to  the  owner  of 
land  by  the  construction  of  a  railroad;  and  where  they  possess  pecu- 
liar knowledge  of  the  facts,  such  evidence  is  often  valuable,    tr.  &  S. 
Wis.  R.  R.  v.  Haslam,  73  111.  494. 

742.  On  an  assessment  of  damages  under  a  proceeding  by  a  rail- 


AND  EMINENT  DOMAIN.  87 


way  to  condemn  the  right  of  way  through  a  farm,  it  is  competent  for 
witnesses  who  are  acquainted  with  the  farm  and  familiar  with  the 
use  and  production  of  such  property,  and  its  value,  to  give  their  opin- 
ion as  to  the  extent  of  the  damages  which  the  construction  of  the  road 
over  the  same  will  occasion.  K.  &  E.  R.  R.  v.  Henry,  79  111.  290. 

743.  EVIDENCE  AS  TO  VALUE.    If  the  land  has  a  market  value  for 
the  purpose  of  sub  division  into  lots  and  blocks,  it  may  be  properly 
proved.    The  jury  may  take  into  consideration  each  and  every  element 
that  may  enter  into  the  true  market  value  of  the  property.    South 
Park  Corns,  v.  Dunlevy,  91  111.  49. 

744.  The  amount  of  compensation  for  land  taken  is  a  question  of 
fact  to  be  found  by  the  jury  from  an  actual  survey  of  the  premises, 
where  that  is  practicable,  their  own  knowledge  of  values  and  the  opin- 
ions of  witnesses  who  are  familiar  with  the  subject  of  inquiry,  and 
whose  business  in  life  has  afforded  them  opportunities  of  acquiring 
information  and  judging  accurately  upon  the  question.    Green  v. 
Chicago,  97  111.  370. 

745.  JURY  NOT  CONFINED  TO  OPINION.    While  it  is  proper  on  the 
examination  of  witnesses  as  to  the  value  of  property  sought  to  be  con- 
demned for  public  use,  to  call  out  the  various  theories  and  processes 
upon  which  their  conclusions  are  based,  to  ascertain  their  correctness, 
yet  the  jury  after  all  must  determine  the  question  of  value  according 
to  their  own  judgment  of  what  seems  to  be  just  and  proper  from  all 
the  evidence  before  them.    Ib. 

746.  OPINIONS—; jury  not  bound  by.     The  opinions  of  witnesses 
upon  the  question  of  damages  in  a  proceeding  to  condemn,  are  not  to 
be  passively  received  and  blindly  followed,  but  they  are  to  be  weighed 
by  the  jury  and  judged  in  view  of  all  the  testimony  in  the  case,  and 
the  jury's  own  general  knowledge  of  affairs,  and  have  only  such  con- 
sideration given  to  them  as  the  jury  may  believe  them  entitled  to 
receive.    McReynolds  v.  Burlington  &  Ohio  River  Ry.,  106  111.  152. 

747.  EXPERTS— weight  of  their  evidence.    In  the  assessment  of 
damages  the  jury  will  be  warranted  in  giving  but  slight,  if  any  weight, 
to  the  evidence  of  mere  experts,  based  simply  on  theory  and  conjecture 
as  to  the  damages  the  construction  of  a  railroad  between  an  elevator 
and  a  river,  would  be  to  the  owner  of  the  elevator     P.  &  P.  U.  Ry.  v. 
P.  &.  F.  Ry.,  105  111.  110. 

748 .  OPINIONS — weight— competency.    Persons  familiar  with  land 
sought  to  be  condemned  who  have  opinions  of  its  value,  though  not 
shown  to  be  experts,  are  competent  witnesses  to  express  their  opin- 
ions.   But  the  weight  of  such  evidence  presents  a  different  question. 
On  that  point  where  there  is, equal  credibility,  superior  opportunity 
and  intelligence  are  entitled  to  the  greater  weight.    Johnson  v.  Free- 
port  &  Miss.  River  Ry.,  Ill  111.  413. 

749.  Such  opinions  as  to  the  value  of  the  land  are  not  however  to 
be  passively  received  and  blindly  followed,  but  should  be  weighed  by 
the  jury  and  judged  of  in  view  of  all  the  evidence  in  the  case  and  the 
jury's  own  general  knowledge  of  affairs  and  have  only  such  considera- 
tion given  to  them  as  the  jury  may  believe  them  entitled  to  receive.  Ib. 

750.  FLANS  AND  PROFILES— production  compelled.   Where  land  is 
sought  to  be  condemned  for  a  right  of  way  over  a  river  upon  which 
the  land  abuts,  and  upon  which  to  build  an  abutment  for  a  railroad 
bridge  across  the  river,  and  the  owner  (another  railway  corporation) 
has  other  lands  adjoining  that  sought  to  be  taken  that  may  be  injured 
more  or  less,  depending  upon  the  character  and  nature  of  the  structure 
to  be  erected  on  the  land  sought  to  be  condemned,  it  is  error  to  refuse 
the  defendant's  motion  to  require  the  petitioner,  before  the  trial  is  be- 
gun, to  exhibit  its  plans  and  profiles  of  its  proposed  railroad  across  the 


88  EAILEOADS,  WAREHOUSES, 

land,  and  to  file  such  plans  as  will  show  to  what  use  the  petitioner 
designs  devoting  the  land  it  seeks  to  condemn,  and  what  it  proposes  to 
put  upon  said  land,  as  tracks,  bridges,  abutments  or  otherwise.  Ch.  & 
Jf.  W.  Ry.  v.  Ch.  &  Evanston  R.  R.,  112  111.  589. 

751.  EVIDENCE — as  showing  value  for  special  use.      Evidence 
showing  that  the  lands  are  valuable  as  located,  bordering  on  or  near  a 
river,  for  saw-mill,  planing-rmll  or  factory,  or  for  any  other  purpose, 
is  proper  on  the  question  of  their  market  value.    Dupuis  v.  Ch.  &  N. 
Wis.  Ry.,  115  111.  97. 

752.  SAME — of  state  of  the  improvements.    Where  the  value  of  a 
mill  on  property  sought  to  be  condemned  for  railroad  purposes,  is  in- 
volved, evidence  that  the  mill  is  of  an  old  pattern  that  has  gone  out  of 
use,  and  therefore  less  valuable,  is  proper  on  the  assessment  of  the 
compensation  to  be  awarded.    Ib. 

753.  OPINION — competency  of  witness.    Preliminary  proof  of  per- 
sonal knowledge  of  the  witness  as  to  the  value  of  land,  based  on  actual 
sales,  is  not  indispensable.    The  lack  of  such  acquaintance  or  proof 
thereof,  goes  to  the  weight  rather  than  to  the  admissibility  of  the  evi- 
dence.    C.  &  E.  R.  R.  v.  Blake,  116  111.  163. 

754.  EVIDENCE— plan  of  proposed  building.    The  plan  of  a  pro- 
posed building  rendered  impossible  by  the  taking,  is  inadmissible  to 
prove  future  probable  prohts,  and  so  enhance  the  damages,  but  it  is 
proper  to  show  the  uses  to  which  the  property  might  be  put.    It  should 
be  so  limited  by  the  court.    Ib. 

755.  EVIDENCE— plan  of  proposed  improvement  by  owner.    On 
the  assessment  of  compensation  and  damages  in  a  proceeding  to  con- 
demn a  railroad  right  of  way  across  lots  abutting  upon  a  river,  the 
court  allowed  the  lot  owners  to  give  in  evidence  a  plat  of  a  proposed 
improvement  on  the  property,  showing  water  fronts  of  proposed  docks 
along  the  river.    The  court  in  admitting  the  plat  and  in  an  instruc- 
tion limited  this  evidence  to  the  question  of  what  uses  the  lots  might 
be  adapted:  Held,  no  error.    Cal.  Riv.  Ry,  v.  Moore.  —  111.  — .    Filed 
March  26, 1888. 

756 .  OPINION— competency  to  give.  Real  estate  brokers  acquainted 
with  the  value  of  real  estate  in  the  neigh  oorhood,  are  competent  to 
give  their  opinion  of  the  value  of  property  sought  to  be  condemned, 
although  their  knowledge  is  not  shown  to  be  based  on  actual  sales. 
Ch.  &  Evanston  R,  R.  v.  Blake,  116  111.  163.  * 

757.  PLANS  OF  THE  ROAD— preserving  in  record.    In  a  proceed- 
ing to  condemn  land  for  a  right  of  way,  it  is  competent  on  the  ques- 
tion of  damages  for  the  company  to  show  the  plan  of  construction  of 
its  road  over  the  premises  sought  to  be  taken.     But  where    such 
plan  will  materially  affect  the  question  of  damages,  the  plan  should  be 
presented  and  preserved  in  the  records  of  the  court;  so  that  if  there 
should  be  a  departure  from  the  plan  to  the  defendant's  injury  he 
may  have  his  remedy  for  any  increased  damages  resulting  from  such 
departure.    III.  &  St.  L.  R.  R.  Coal  Co.  v.  tiwitzer,  117  111.  399. 

758.  CHANGE  or  PLANS— liability  for.    While  a  purchaser  of  land 
cannot  recover  for  an  injury  by  the  construction  of  a  railroad  over  the 
same,  yet  if  the  company,  after  his  purchase,  adopts  a  new  feature  in 
the  construction  and  operation  of  its  road  in  the  future  by  making  an 
opening  in  an  embankment  for  the  passage  of  water,  and  constructing 
a  bridge  over  the  opening,  such  purchaser  will,  in  a  proceeding  to  con- 
demn, be  entitled  to  compensation  for  any  damages  growing  out  of  the 
change  or  alteration  in  the  nature  of  the  work.     W.,  kit.  L.  &  P.  Ry. 
v.  McDougall,  118  111.  229. 

759.  STIPULATION  OF  PETITIONER— evidence  on  question  of  dam- 
ages.   In  a  proceeding  by  one  railway  company  to  condemn  a  right 


AND  EMINENT  DOMAIN.  89 

of  way  across  the  track  of  another  company,  a  stipulation  or  cove- 
nant of  the  petitioner,  properly  executed,  that  it  will,  at  its  own 
expense,  put  in  and  maintain  in  proper  repair  the  frogs  and  crossings 
over  two  main  tracks  of  the  defendant  company,  expressed  to  be  bind- 
ing on  its  successors  and  assigns,  is  proper  evidence  for  the  petioner 
on  the  question  of  damages.  C.  &  A.  R.  R.  v.  Joliet,  Lockport  & 
Aurora  Ry.,  105  111.  388. 

760.  PROFILE  OF  GRADE  OF  STREET — as  evidence  on  question  of 
damages.    In  a  suit  by  the  owner  of  a  house  and  lot  to  recover  dam- 
ages growing  out  of  a  change  in  the  grade  of  a  street,  after  the  work 
is  commenced  and  before  its  completion,  the  profile  of  the  proposed 
improvement  is  proper  evidence  against  the  city.    City  of  Elgin  v. 
Eaton,  83  111.  535.    As  to  plans,  profiles,  specifications,  &c.,  being 
proper  evidence,  see  also  Hyde  Park  v.  Andrews,  87  111.  229;    Peoria 
&  R.  I.  R.  R.  v.  Sirkett,  62  111.  332;  St.  L.,  J.  &  Ch.  R.  R.  v.  Mitchell, 
47  111.  165;  Hayes  v.  O.  0.  &  F.  R.  V.  R.  R.,  54  111.  373;  Mix  v.  L.  B. 
&  M.  Ry.,  67  111.  319;  Wilkin  v.  8t.  Paul  R.  R.,  16  Minn.  271;  Rippfi 
v.  Ch.  R.  R.,  23  Minn.  18. 

761.  AVERAGING  THE  EVIDENCE.    The  jury  may  take  an  average 
of  the  testimony  on  the  question  of  compensation  or  damages,  if 
properly  done  by  a  consideration  of  all  the  elements  and  circumstances 
referred  to  in  the  law  as  proper,  to  aid  in  determining  the  weight  of 
evidence,  and  they  should  not  be  told  that  they  have  no  right  to 
average  the  testimony  without  explanation.    Peoria  &  Rock  Island 
R.  R.  v.  Sirkett,  62  111.  332. 

762.  AVERAGING  EVIDENCE.    The  jury  have  not  the  right  to  take 
the  gross  amount  as  sworn  to  and  divide  it  by  the  number  of  the  wit- 
nesses to  obtain  their  verdict,  unless  there  is  afterwards  full  and  free 
consultation  and  the  judgment  assents  to  the  sum  uninfluenced  by  any 
previous  agreement.    P.  &  R.  I.  R.  R.  v.  Sirkett,  62  111.  332. 

763.  DAMAGES— when  nominal.  The  amount  of  the  damages  must 
be  shown,  not  necessarily  with  precision,  but  approximately.  If  dam- 
age is  shown  but  the  amount  is  not  approximately  made  to  appear,  no 
more  than  nominal  damages  can  be  allowed.     P.,  P.  &  U.  Ry.  v.  P.  & 
F.  Ry.,  105  111.  110. 

764.  OF  THE  USE  OF  THE  LAND. — If  property  sought  to  be  con- 
demned by  a  railway  company  for  a  right  of  way  is  claimed  by  a  cem- 
etery company,  it  may  be  shown  on  the  question  of  the  compensation 
and  damages  that  the  land  is  not  used  for  burial  purposes  and  is  not 
susceptible  of  being  used  for  cemetery  purposes.    The  owner  of  the 
land  is  entitled  to  have  the  highest  price  for  which  the  same  can  be  sold 
for  any  purpose.    Concordia  Cem.  Assoc.  v.  Minn.  &  N.  W.  R.  R.,  121 
111.  199. 

765.  OF  OTHER  SALES.    Evidence  in  regard  to  sales  of  prairie  land 
one  mile  distant  from  the  land  sought  to  be  condemned,  may  be  received 
as  tending  in  some  measure  to  show  the  value  of  the  land  involved, 
where  there  is  no  evidence  of  any  actual  present  market  value,  nor  of 
sales  of  like  property  nearer.    Where  the  land  sought  is  not  laid  out 
into  lots  and  improved  as  cemetery  property,  proof  of  sales  of  other 
cemeteries  is  not  competent  evidence  on  the  assessment.    Ib. 

766.  OF  OTHER  SALES  OF  LAND.    On  the  question  of  the  damage 
of  a  railway  to  a  farm,  the  defendant  gave  in  evidence  the  opinions  of 
witnesses  as  to  the  amount  of  the  depreciation  of  its  market  value, 
and  thereupon  evidence  was  admitted  in  rebuttal  to  show  how  the 
selling  values  of  other  farms  in  the  county  crossed  by  railroads  were 
affected:  Held,  that  the  latter  evidence  was  improper.   Kiernan  v.  Ch., 
8.  F.  &  Cal.  Ry.—lll.  —.    Filed  Nov.  11, 1887. 

767.  DAMAGE  BY  DIVERSION  OF  STREAM.    If  damages  are  claimed 


90  EAILBOADS,  WAREHOUSES, 

for  the  division  of  a  stream,  evidence  tending  to  show  it  was  a  recep- 
tacle of  all  the  sewerage  of  a  city  near  by,  and  had  become  so  foul  as 
to  be  worthless  for  stock  water,  is  proper  as  bearing  on  the  question  of 
damages.  Ib. 

768.  PERSONAL  VIEW — its  weight.    The  result  of  the  jury's  per- 
sonal view  of  the  land  over  which  a  railroad  is  sought  to  be  laid,  is 
proper  evidence  upon  which  they  may  act,  and  give  it  greater  weight 
than  the  opinion  of  witnesses.    Ib. 

DAMAGES  TO  OTHERLANDS  NOT  DESCRIBED  IN  PETITION. 

769.  CROSS  PETITION  NECESSARY.    On  an  assessment  of  damages 
to  certain  lots  abutting  upon  a  street  caused  by  the  location  of  a  side 
track  of  a  railroad  in  a  public  street,  the  owner  will  not  have  the 
right  to  prove  damages  to  his  entire  land,  consisting  of  many  lots 
lying  together,  and  with  those  named  constituting  an  entire  tract, 
unless  he  flies  a  cross  petition  setting  up  that  the  other  lots  will  be 
damaged.    Mix.  v.  L.  B.  &  Miss.  Ry.,  67  111.  319. 

770.  The  inquiry  as  to  damages  should  be  confined  to  the  tract  of 
land  described  in  the  petition  in  the  absence  of  a  cross  bill  by  the 
defendant  showing  that  he  owns  contiguous  lands  which  will  be  dam- 
aged.   Jones  v.  Ch.  &  Iowa  R.  R.,  68  111.  380. 

771.  Where  the  petition  describes  only  one  tract  of  the  defendant's 
land,  a  portion  of  which  the  right  of  way  cuts  off  from  the  entire 
farm,  also  consisting  of  another  tract,  the  correct  practice,  in  order  to 
recover  damages  as  to  the  whole,  is  to  file  a  cross  petition;  but  when 
this  is  not  done,  and  the  damages  are  assessed  without  objection  to 
the  whole  farm,  and  the  court  protects  the  petitioner  from  further 
proceedings  for  the  recovery  of  damages  to  the  balance  of  the  farm, 
by  requiring  the  owner  to  execute  a  release  as  to  it,  the  judgment  will 
not  be  reversed  for  the  error.    Galena  &  S.  Wis.  R.  R.  v.  JBirkbeck,  70 
111.  208. 

772.  Where  the  petition  describes  only  one  tract  of  the  defendant's 
farm  which  is  cut  off  from  the  rest,  and  damages  are  assessed  in 
respect  to  that  tract,  the  owner  may  afterwards  cause  the  damages  to 
be  assessed  as  to  the  balance  of  the  land.    Ib. 

773.  Where  a  petition  is  filed  to  condemn  land  for  right  of  way 
and  there  is  no  cross  petition  to  include  other  land  within  it,  it  is 
improper  to  permit  evidence  to  be  introduced  in  regard  to  land  adjoin- 
ing that  described  in  the  petition  and  belonging  to  the  same  owner. 
P.  A.  &  D.  R.  R.  v.  Sawyer,  71  111.  361. 

774.  The  owner  may  by  cross  petition  have  the  damages  to  his 
other  contiguous  land  assessed  in  addition  to  the  compensation  for  the 
land  taken.    Stetson  v.  Ch.  &  E.  R.  R.,  75  111.  74. 

7  75.  Where  a  part  of  a  lot  is  sought  to  be  condemned  by  a  city  for 
a  street,  damages  as  to  the  part  not  sought  to  be  taken  may  be  allowed 
without  any  cross  petition  by  the  owner.  Bloominyton  v.  Miller,  84 
111.  621. 

776.  The  ascertainment  of  the  just  compensation  to  the  owner  for 
taking  away  a  part  of  his  lot  of  necessity  involves  the  consideration 
of  the  value  of  the  whole  property  intact,  and  the  value  of  that  part 
not  taken  after  the  proposed  part  shall  have  been  taken.    Ib. 

777.  The  petition  need  not  describe  the  property  not  sought  to  be 
taken  or  damaged,  and  if  other  property  is  brought  in  by  cross  peti- 
tion, it  is  incumbent  on  the  defendant  to  show,  in  the  first  instance, 
that  it  was  taken  or  damaged,  and  the  petitioner  is  entitled  to  give 
evidence  in  rebuttal.    Hyde  Park  v.  Dunham,  85  111.  569. 


AND  EMINENT  DOMAIN.  91 

778 .  Where  the  defendant  filed  a  pleading,  stating  that  "  he  is  the 
owner  of  the  lands  mentioned  in  the  petition  and  other  lands  contigu- 
ous thereto,  making  a  farm  of  730  acres  in  a  compact  body;  that  the 
railroad  company  takes  about  12  acres  out  of  his  farm,  dividing  wood, 
water  and  timber  from  the  balance  of  the  farm;  that  the  land  thus 
taken  is  of  the  value  of  $150  per  acre,  and  the  damage  by  reason  of 
the  cutting  the  farm  is  $10,000;  and  he  respectfully  asks  that  this,  his 
compensation,  may  be  awarded  to  him  as  shall  be  just  and  proper:" 
Held,  sufficient  to  answer  the  purpose  of  a  cross  petition  for  damages 
to  contiguous  lands,  and  gave  the  court  jurisdiction  as  to  the  claim  of 
such  damages.    Ch.  &  Iowa  R.  R.  v.  Hopkins,  90  111.  316. 

779.  Where  the  petition  for  right  of  way  shows  that  the  defendant 
is  the  owner  of  an  entire  tract  of  land,  and  that  petitioner  proposes  to 
take  a  strip  through  the  same,  a  cross  petition  is  not  necessary  to 
enable  the  defendant  to  have  damages  assessed  for  land  not  taken. 
111.  Western  Extension  R.  R.  v.  May  rand,  93  111.  591. 

780.  The  evidence  will  be  confined  to  the  particular  lands  described 
in  the  petition,  unless  the  defendant  files  a  cross  petition,  setting  up 
that  he  is  the  owner  of  other  land  not  described  in  the  original  peti- 
tion which  will  be  damaged,  and  makes  claim  to  have  the  damages 
thereto  likewise  assessed .     Ch.  &  Iowa  R.  R.  v.  Hopkins,  90  111.  316. 

781.  Where  the  owner  by  cross  petition  claims  damages  to  other 
parts  of  the  same  tract,  an  instruction  confining  the  assessment  of  the 
jury  to  the  strip  of  land  actually  taken,  and  excluding  consideration 
of  damages  to  the  remainder  of  the  farm,  is  properly  refused.    Ib. 

782.  CROSS  PETITION— right  to  file — defects,  how  reached.    On  a 
petition  to  condemn  land  by  a  railway  compapy,  the  defendant  has  a 
right  to  file  a  cross  petition  where  his  interests  are  not  accurately  or 
fully  stated  in  the  petition,  and  thereby  recover  compensation  for 
damages  to  the  adjacent  property  not  sought  to  be  taken,  and  it  is 
error  to  strike  such  a  petition  from  the  files.    If  it  be  defective,  or  the 
property  damaged  is  insufficiently  described,  or  the  cross  petition  does 
not  show  how  the  property  will  be  damaged,  the  proper  course  is  to 
demur  to  it,  so  as  to  afford  an  opportunity  to  amend.    Johnson  v. 
Freeport  &  Miss.  River  Ry.,  Ill  111.  413. 

DAMAGES  AS  OF  WHAT  DATE. 

788.  ACT  OF  1852— facts  at  date  of  trial  govern.  Under  the  act 
of  1852,  in  assessing  the  damages  above  the  benefits,  the  jury  is  not 
confined  to  a  consideration  of  the  facts  as  they  existed  at  the  time  the 
land  was  taken,  but  may  consider  the  subject  in  the  light  of  the  facts 
as  they  exist  at  the  time  of  the  trial.  Hayes  v.O.,O.&  Fox  River  Valley 
R.  R.,  54  111.  373. 

784.  LAND  FOR  PARK — value  at  date  of  condemnation.    In  assess- 
in  ,  damages  for  land  taken  for  a  public  park,  its  value  at  the  time  of 
the  condemnation  should  be  considered,  the  owner  being  entitled  to 
the  benefit  of  an  advance  caused  by  the  prospective  establishment  of 
a  public  park.    Cook  v.  /South  Park  Comrs.,  61  111.  115. 

785.  SAME — suit  against  owner.     Where  the  public  authorities  in 
a  proceeding  to  condemn  land  for  a  public  park,  have  not  acquired 
either  the  title  or  the  possession  of  the  land,  it  is  error  to  award  rent 
against  the  owner  for  the  use  of  the  premises  from  the  date  of  the 
law,  or  time  it  took  effect.    Ib. 

78(>.  Where,  the  witnesses  on  bolh  sides  in  a  proceeding  to  don- 
demn  property  testified  as  to  its  value  at  the  date  of  the  institution  of 
the  proceeding,  except  three,  and  from  their  testimony  it  did  not 
appear  that  the  property  was  worth  more  at  the  time  of  the  trial,  it 


92  EAILROADS,  WAREHOUSES. 

was  held,  that  a  modification  of  an  instruction  confining  the  jury  to 
its  value  at  the  first  date,  was  not  of  sufficient  importance  to  affect 
the  right  of  the  land-owner.  McAuley  v.  Col.,  Ch.  &  Ind.  Cent.  Ry., 
83  111.  348. 

787.  TAKEN  BEFORE  CONDEMNATION — advance  in  value.    Where 
land  has  been  taken  and  occupied  for  railroad  purposes  prior  to  the 
institution  of  proceedings^  condemn,  the  value  of  the  land  taken,  at 
the  time  of  the  condemnation,  is  the  value  to  be  ascertained,  the  owner 
being  entitled  to  any  advance  between  that  time  and  the  actual  taking 
of  the  land;  and  when  the  land  is  sold  after  its  occupation  for  a  right 
of  way  and  before  proceedings  to  condemn,  the  purchaser  will  be  enti- 
tled to  the  advance  in  value.    Ch.  &  Iowa  R.  R.  v  Hopkins,  90  111.  316. 

788.  DATE  OF  FILING  PETITION.    On  petition  to  condemn  land  for 
public  use,  the  compensation  to  be  paid  must  be  fixed  by  the  valuation 
of  the  property  at  the  date  of  the  filing  of  the  petition  and  not  at  the 
time  of  the  trial.    South  Park  Corns,  v.  Dunlevy,  91  111.  49. 

789.  Where  compensation  is  paid,  the  rights  of  the  petitioner  relate 
to  the  time  of  filing  the  petition,  and  the  amount  of  compensation  is 
determined  by  the  valuation  at  that  time.    Schreiber  v.  Ch.  &  E.  R. 
R.,  115  111.  340. 

790.  The  compensation  to  be  paid  is  fixed  by  the  value  of  the  prop- 
erty taken  at  the  time  of  the  filing  ot  the  petition.    Ib. 

WHO  ENTITLED  TO  DAMAGES. 

791.  SUBSEQUENT  PURCHASER.    Where  a  railway  company  with- 
out any  authority  locates  and  operates  its  road  over  a  tract  of  land 
belonging  to  an  estate,  on  a  judicial  sale,  the  whole  land  with  the  right 
of  way  will  pass  to  the  purchaser,  and  he  will  be  entitled  to  compensa- 
tion for  the  land  taken  and  damages  for  any  injury  to  the  residue. 
Ch.  &  Iowa  R.  R.  v.  Hopkins,  90  111.  316. 

ASSESSMENT  COVERS  ALL  FUTURE  DAMAGES. 

792.  BAR  TO  FURTHER  ACTION.    All  damages,  present  and  pro- 
spective, resulting,  or  to  result  to  the  land  owner  from  the  proper  con- 
struction, maintenance  and  operation  of  a  railroad  over  or  upon  his 
land,    constitute  one   single,  indivisible   cause  of   action,  whether 
enforced  under  the  eminent  domain  act,  or  by  action.    After  the  recov- 
ery of  damages  for  right  of  way  the  land-owner  and  his  subsequent 
grantee  are  barred  as  to  any  subsequent  damages  that  might  have 
been  reasonably  anticipated.    O.  &  M.  Ry.  v.  Wachter,  —  111.  — .   Filed 
Jan.  20,  1888. 

793.  Where  a  right  of  way  is  condemned  for  public  use  over  a 
tract  of  land,  the  owner  will  be  entitled  to  compensation,  not  only  for 
the  value  of  the  land  taken,  but  also  for  all  damages  to  the  residue  of 
the  tract,  past,  present  and  future,  which  the  public  use  may  there- 
after reasonably  produce.    C.,  R.  I.  &  P.  Ry.  v.  Smith,  111  111.  363. 

794.  GRANT  OF  RIGHT  OF  WAY — increased  use.    The  grant  of  a 
right  of  way  to  a  railway  company  "for  all  uses  and  purpose,  or  in 
any  way  connected  with  the  construction,  preservation,  occupation 
and  enjoyment  of  said  railroad,"  is  broad  enough  to  embrace  all  uses 
for  railroad  purposes,  however  much  increased  and  by  other  compa- 
nies authorized  by  law.    Ib. 

795.  RECOVERY — when  a  bar  to  future  damages.    In  an  action  for 
deterioration  in  the  value  of  real  estate  from  a  nuisance  of  a  perma- 
nent character,  all  damages  for  past  and  future  injury  may  be  recov- 
ered, and  one  recovery  is  a  bar  to  all  future  actions  for  the  same 


AND  EMINENT  DOMAIN.  93 

cause.  Ottawa  Gas  Co.  v.  Graham,  28  111.  73;  /.  C.  R.  R.  v.  GhraUll,  50 
111.  244;  Cooper  v.  Randall,  59  111.  321;  Decatur  Gas  Co.  v.  Howell,  92 
111.  19;  C.  &  A.  R.  R.  v.  Maker,  91  111.  312;  C.  & E.  III.  R.  R.  v.  McAuley, 
121  111.  165:  Troy  v.  Cheshire  R.  R.,  3  Fost.  N.  H.  83;  Stodghill  v.  C., 
B.  &  Q.  R.  R.,  53  Iowa  343;  Powers  v.  Council  Bluffs,  45  Iowa  652;  C. 
&  E.  111.  R.  R.  v.  Loeb,  118  111.  209;  Fowle  v.  N.  H.  &  N.  R.  R.,  112 
Mass.  334;  Kansas  R.  R.  v.  Mihlman,  17  Kan.  224;  Fowle  v.  N.  H.  & 
N.  R.  R.,  107  Mass.  352;  Warner  v.  Bacon,  8  Gray  397;  /.  C.  R.  R.  v. 
Allen,  39  111.  205;  C.,  B.  &  Q.  R.  R.  v.  Schaffer,  —  111.  — .  Filed  March 
28,  1888. 

EELEASE,  AS  A  BAE. 

796.  CONTRACT  FOB.    Where  a  party  executes  a  contract  with  a 
railway  company,  agreeing  to  release  and  convey  a  right  of  way  for 
its  road  over  any  land  owned  by  him,  as  soon  as  the  road  is  located,  he 
will  not  be  entitled  to  any  damages  by  the  construction  of  the  road 
over  any  of  his  lands.    Conwell  v.  Spr.  &  N.  W.  R.  R.,  81  111.  232. 

797.  CONSTRUCTION  OF.    Where  a  deed  is  given  a  railway  company 
for  a  right  of  way  100  feet  wide  through  the  grantor's  land,  releasing 
all  claim  for  damages  by  reason  of  the  location  and  completion  of  the 
road  over  the  same  or  any  part  thereof,  it  will  confer  the  same  right 
on  the  grantee  as  it  might  have  acquired  by  condemnation,  and  an 
immunity  from  all  damages  that  the  grantee  might  have  claimed.    St. 
L.,  V.  &  T.  H.  R.  R.  v.  Hurst  14  Bradw.,  419. 

•  798.  Unless  the  acts  complained  of  were  a  departure  from  or  were 
not  embraced  in  the  purposes  for  which  the  deed  was  given  there  can 
be  no  recovery,  and  it  is  error  to  refuse  to  admit  such  deed  in  evidence. 
76. 

DAMAGES  TO  PEOPEETY  WHEEE  NONE  OF  IT  IS  TAKEN. 

799.  CONSTITUTION  OF  1848.    Under  the  constitution  of  1848  and 
the  statutes  in  force  in  Ma'rch,  1870,  a  party  is  not  entitled  to  damages 
by  reason  of  the  construction  of  a  highway  adjoining  and  abutting 
against  his  land,  when  no  part  thereof  has  been  taken.     Hoag  v. 
Switzer,  61  111.  294. 

800.  At  that  date  the  commissioners  of  highways  had  no  power 
to  assess  or  award  consequential  or  remote  damages  to  a  party  by 
reason  of  the  construction  of  a  highway,  when  no  part  of  his  land  was 
taken.    The  road  law  of  1861,.  §§  55,  56  and  68  does  not  conflict  with 
this  view.    Ib. 

801.  DAMAGES  CONTEMPLATED.     The  word  "damaged"  in  this 
clause  of  the  constitution  is  used  in  its  ordinary  and  popular  sense, 
which  is  "  hurt,"  "injury  "or  "loss."     The   damage  contemplated  is 
an  actual  diminution  of  present  value,  or  of  price,  caused  by  the  con- 
struction of  the  road,  or  a  physical  injury  to  the  property  that  renders 
it  less  valuable  in  the  market.    Ch.  &  P.  R.  R.  v.  Francis,  70  111.  238. 

802.  SAME — depreciation  of  value.     Where  the  property  is  not 
taken,  the  damages  must  be  real  and  not  speculative.    If  the  property 
is  not  worth  less  in  consequence  of  the  construction  of  the  railroad  in 
its  vicinity,  or  upon  a  street  upon  which  the  lots  abut  than  if  no  road 
were  constructed,  the  owner  will  not  be  entitled  to  damages.    Ib. 

803 .  The  words  in  the  act  of  1872   "  which  may  damage  property 
not  actually  taken,"  relate  to  contiguous  lands  of  the  same  owner,  a 
part  of  which  only  is  taken.    The  damages  to  land  not  taken  must  be 
direct  and  physical  and  result  from  the  taking  of  a  portion  of  his  land. 
Stetson  v.  Ch.  &  E.  R.  R.,  75  111.  74. 

804.  The  constitution  of  1870  was  intended  to  afford  redress  in 


94  EAILBOADS,  WAEEHOUSES, 

cases  not  provided  for  before,  and  embraces  every  case  where  there  is 
a  direct  physical  injury  to  the  right  of  use  or  enjoyment  of  private 
property,  by  which  the  owner  sustains  some  special  damage  in  excess 
of  that  sustained  by  the  public  generally.  Riyney  v.  Chicago,  102  111.  ill. 

805.  While  the  present  constitution  was  intended  to  afford  redress 
in  a  class  of  cases  for  which  there  was  no  remedy  under  the  old  con- 
stitution, still  it  was  not  intended  to  reach  every  possible  injury  occa- 
sioned by  a  public  improvement.    The  building  of  a  jail,  police  station, 
or  the  like,  will  generally  cause  a  direct  depreciation  in  the  value  of 
neighboring  property,  but  that  is  a  case  of  damnum  absque  wjuria.  Ib. 

806.  Any  expressions  used  in  Stetson  v.  Chicago  &  Evanston  R.  R., 
75  111.  74;  and  C.  M.  &  St.  P.  R.  R.  v.  Hall,  90  111.  42,  which  may  seem 
to  restrict  the  remedy  of  owners  of  private  property  as  given  by  the 
present  constitution  to  cases  where  there  has  been  a  direct  physical 
injury,  are  not  to-  be  accepted  as  embodying  the  views  of  the  court  on 
that  subject.    Ib. 

807.  The  right  to  recover  damages  for  injury  to  private  property 
occasioned  by  the  taking  of  other  property  for  public  use,  if  not  con- 
ferred, is  secured  by  §  13  Art.  2  of  the  constitution  of  1870.    Ch.  &  W. 
Ind.  R.  R.  v.  Ayres,  106  111.  511. 

808.  PROPERTY  NOT  TAKEN.    Prior  to  the  constitution  of  1870,  no 
compensation  was  required  to  be  paid  for  property  not  taken  for  pub- 
lic use,  but  which  was  damaged  by  the  construction  and  maintenance 
of  public  improvements.    Under  that  constitution  an  action  by  a  lot 
owner  for  a  physical  injury  to  his  property  by  constructing  and  oper- 
ating a  railway  in  a  public  street  near  his  lot,  may  be  regarded  as  a 
proceeding  to  recover  just  compensation  for  private  property  damaged 
for  the  public  good,  and  one  recovery  will  bar  any  subsequent  action 

for  the  same  cause.    Ch.  &  E.  III.  R.  R.  v.  Loeb,  118  111.  208. 

i 

DAMAGE  TO  CONTIGUOUS  PROPERTY. 

LIABILITY  OF  MUNICIPAL  CORPORATION. 

809.  CHANGE  OF  STREET  GRADE.    Municipal  authorities  have  the 
undoubted  power  to  alter  the  grade  of  streets  at  their  discretion  and 
compel  property  owners  to  conform  thereto;  and  if  the  work  is  done 
with  reasonable  care  and  diligence,  the  town  or  city  will  not  be  liable 
to  such  owners  for  damages  growing  out  of  obstructing  the  streets, 
but  if  they  act  wrongfully,  or  with  bad  intent,  damages  may  be  re- 
covered.   Roberts  v.  Chicago,  26  111.  249. 

810.  SAME— creating  nuisance.    If  a  city  in  fixing  the  grade  to  a 
street  turns  a  stream  of  water  and  mud  upon  the  grounds  or  cellar  of  a 
citizen,  or  creates  in  his  neighborhood  a  stagnant  pond  that  generates 
disease,  it  will  become  liable  to  him  in  damages.     Nemns  v.  Peoria, 
41  111.  502;  Aurora  v.  Qillett,&>  111,  132;  Aurora  v.  Reed,  57  111.   29; 
Shawneetown  v.  Mason,  82  111.  337. 

811.  DEFECTIVE  SEWER — surface  water.    The  liability  of  a  city 
for  an  injury  to  private  property  resulting  from  drains  and  sewers 
constructed  by  the  city, being  defective  or  having  become  obstructed, 
by  reason  whereof  surface  water  from  the  streets  is  thrown  upon  the 
premises  of  another,  is  correctly  stated  in  Nevins  v.  Peoria,  41  111.  502; 
Aurora  v.  GKllett,  56  111.  132. 

812.  DRAINING  STREETS.     If  it  becomes  necessary  for  the  public 
interest  in  the  process  of  grading  or  draining  the  streets  that  the  lot 
of  an  individual  shall  be  rendered  unfit  for  occupancy,  either  wholly 
or  in  part,  the  public  should  pay  for  it  to  the  extent  it  deprives  the 
owner  of  its  legitimate  use.    Nemns  v.  Peoria,  41  111.  502. 


AND  EMINENT  DOMAIN.  95 

813.  ^GRADE  or  STREET.    A  city  has  full  control  over  the  grade 
of  its  streets,  and  may  lower  or  elevate  it  at  pleasure,  and  for  the 
Inconvenience  and  expense  of  adjusting  their  lots  with  the  streets  the 
owners  thereof  will  have  no  right  of  action.    Aurora  v.  Reed,  57  111.  29. 

814.  A  city,  under  the  plea  of   public  convenience,  cannot  be 
allowed  to  exercise  its  powers  over  the  public  streets  to  the  injury  of 
private  property  in  such  a  mode  as  would  render  a  private  owner 
liable.    Ib. 

815.  GRADE— throwing  water  on  lot.    Where  a  city  fixes  the  grade 
of  a  public  street,  and  has  the  same  so  improved  that  water  from 
rains  and  melting  snows  runs  to  and  discharges  itself  upon  a  private  lot, 
the  city  will  be  liable  to  the  owner  in  damages,  although  the  street 
may  have  been  improved  before  the  lot  was.    It  is  no  defense  that  the 
owner  might  have  protected  his  lot  by  digging  ditches.    Ib. 

816.  DEPRIVING  OF  SIDEWALK.    City  authorities  have  no  power 
to  appropriate  such  part  of  land  dedicated  for  a  public  street  as  will 
deprive  the  owners  on  one  side  of  the  street  of  a  sidewalk,  and  if  they 
attempt  to  do  so  they  may  be  enjoined.    Carter  v.  Chicago,  57  111.  283. 

817.  INJURY  TO  SEWERAGE.    If,  in  abating  or  removing  a  nuis- 
ance, by  a  system  of  sewerage  or  drainage,  a  city  unavoidably  inflicts 
an  injury  upon  private  property,  it  should,  by  condemnation  or  other- 
wise, make  compensation  for  the  injury.    Jacksonville  v.  Lambert, 
62111.519. 

818.  CHANGE  OF  GRADE.    Municipal  corporations  may  regulate 
and  establish  the  grade  of  their  streets,  but  this  must  be  so  done  as  to 
do  no  serious  injury  to  the  owners  of  abutting  lots.    They  have  no 
right  to  change,  the  natural  flow  of  water  and  throw  it  upon  the  lands 
of  another.    Dixon  v.  Baker,  65  111.  518. 

810.  Where  a  city,  by  elevating  the  grade  of  a  street,  caused  the 
surface  water  to  flow  upon  the  plaintiff's  lot  and  into  the  basement  of 
his  cellar,  whereby  the  building  thereon  was  injured,  and  the  walls 
were  cracked,  and  it  appeared  that  the  injury  might  have  been  avoided 
by  proper  sewerage:  Held,  that  the  city  became  liable.  Ib. 

820.  While  the  corporate  authorities  are  vested  with  power  to 
grade  their  streets,  yet  the  manner  of  its  exercise  is  limited  in  the 
same  way  and  to  the  same  extent  as  the  power  of  a  private  person  in 
the  use  of  his  property,  unless  such  authorities  call  to  their  aid  the 
right  of  eminent  domain,  in  which  case  compensation  must  be  made. 
Pefcin  v.  Brereton,  67  111.  477. 

821.  GUTTER  OUT  OF  REPAIR.   If  a  city  suffers  a  gutter  in  a  street 
it  has  constructed,  to  get  out  of  repair,  so  that  the  water  which  it 
should  have  carried  off,  is  thrown  upon  the  lot  of  an  individual  near 
by,  and  his  buildings  are  damaged  thereby,  the  city  will  be  liable  for 
the  injury.    Alton  v.  Hope,  68  111.  167. 

822.  CHANGE  OF  GRADE.    A  city  may  elevate  or  lower  the  grade 
of  its  streets,  when  done  in  good  faith  with  a  view  to  fit  them  for 
use,  and  cannot  be  held  responsible  for  errors  of  judgment  in  that 
respect,  or  made  liable  for  the  inconvenience  and  expense  of  adjust- 
ing the  adjacent  property  to  the  grade  as  changed.    Shawneetown  v. 
Mason,  82  111.  337. 

823.  STREET  FOR  LEVEE.    But  if  the  street  is  appropriated  to 
another  use  than  that  contemplated  when  it  was  laid  out,  as  ror  a  levee 
to  prevent  a  river  from  overflowing  the  town,  and  the  grade  is  raised 
for  fifi>-h  a  purpose  only,  then  under  the  constitution  of  1870,  the  own- 
ers of  property  damaged  thereby,  are  entitled  to  just  compensation.  76. 

824.  Under  the  constitution  of  1870,  if  injury  to  private  property 
is  sustained  by  changing  the  grade  of  a  street,  the  municipal  corpora- 


96  KAILKOADS,  WAREHOUSES, 

tion  causing  the  same,  will  be  liable  to  the  owner  in  damages.    Elgin 
v.  Eaton,  83  111.  535. 

825.  EXCAVATION  IN  STREET.    The  distinction  between  an  exca- 
vation made  in  a  street  and  one  made  by  an  individual  upon  his  own 
adjoining  land,  as  respects  the  right  of  recovery  by  the  owner  of  abut- 
ting premises,  is  that  such  owner  has  the  legal  right  to  use  the  street. 
If  his  right  of  ingress  and  egress  is  disturbed,  he  may  have  damages 
therefor,  while  if  the  adjoining  proprietor  excavates  upon  his  own  land, 
no  harm  is  done,  unless  his  neighbor's  lot  has  been  disturbed  thereby. 
Elgin  v.  Eaton,  2  Bradw.  90. 

826.  BRIDGE  IN  STREET.    In  an  action  by  an  adjacent  lot-owner  for 
damages  caused  by  the  construction  of  approaches  to  a  bridge,  evidence 
of  damages  caused  by  the  bridge  employes  throwing  dust  and  dirt  from 
the  bridge  in  baskets,  is  not  admissible;  nor  is  evidence  of  damage 
arising  from  the  diversion  of  travel  and  trade.    E.  St.  Louis  v.  Wig- 
gins Ferry  Co.,  11  Bradw.  254. 

827.  KAILROAD  IN  STREET.    A  city  is  not  liable  for  damages 
resulting  from  the  proper  exercise  of  authority  in  permitting  railroad 
tracks  to  be  laid  in  the  streets,  or  in  raising  the  grade  of  streets. 
Unless  the  authorities  exceed  their  power  there  is  no  liability.    Mur- 
phy v.  Chicago,  29  111.  279. 

828.  DEPRIVING  OF  SIDEWALK — injunction.    Where  city  authori- 
ties undertake  by  ordinance  from  fraudulent  and  malicious  motives  to 
appropriate  so  much  of  one  side  of  a  street  to  the  purposes  of  a  road- 
way, as  will  deprive  the  adjacent  property  owners  of  any  sidewalk,  a 
court  of  equity  has  jurisdiction  to  restrain  the  execution  of  the  ordi- 
nance.   Carter  v.  Chicago,  57  111.  283. 

829.  EXCAVATIONS  IN  STREETS.    A  municipal  corporation  while 
acting  within  the  scope  of  its  authority  in  making  excavations  in  a 
street  for  the  purpose  of  opening  and  improving  it,  using  proper  care 
and  skill,  is  not  liable  to  the  lot-owner  for  an  injury  to  his  buildings 
caused  by  removing  the  lateral  support  of  the  soil  in  the  streets. 
Quincy  v.  Jones,  76  111.  231. 

830.  ALLOWING  RAILROAD  EXCAVATIONS.    If  a  railway  company 
under  a  right  conferred  by  a  city,  constructs  its  track  along  a  public 
street,  and  makes  excavations  along  such  street,  so  that  a  lot  owner  is 
thereby  deprived  of  convenient  access  to  and  from  the  street  and  to  his 
lot,  and  the  lot  and  building  thereon  are  subject  to  injury  by  the  caving 
and  falling  in  of  the  lots,  the  city  will  be  liable  to  the  owner  in  an  ac- 
tion on  the  case  for  the  injury  caused  by  such  excavations.    Pekin  v. 
Brereton,  67  111.  477. 

831.  OBSTRUCTING  ACCESS  TO  LOTS.   Where  a  city  had  established 
no  grade  of  a  street  upon  which  the  plaintiff  had  a  house  and  lot,  and  a 
railway  company  by  permission  of  the  city,  filled  up  the  space  between 
an  original  embankment  and  the  plaintiff's  lot,  so  as  to  prevent  access 
to  his  lot  by  wagons  and  carriages  from  the  street,  as  had  been  his 
custom:    Held,  that  as  this  was  a  special  injury  to  the  plaintiff  and 
peculiar  to  him,  he  was  entitled  to  damages  from  the  city.    Pekin  v. 
Winkel,  77  111.  56. 

832.  RAILROAD  IN  STREETS.    A  city  or  village  may  authorize  the 
laying  of  railroad  tracks  in  its  streets,  and  such  use  is  not  inconsistent 
with  the  trust  for  which  they  are  held,  but  in  so  doing  the  city  has  no 
right  to  so  obstruct  the  streets  as  to  deprive  the  public  and  adjacent 
property  holders  from  their  use  as  a  highway.   Stack  v.  East  St.  Louis, 
85  111.  377 

833.  If  the  authorities  of  a  town  or  city  authorize  a  structure  upon 
a  public  street,  or  other  obstruction  that  causes  injury  to  adjacent  lot 
holders,  it  will  be  liable  for  the  damages.    Ib. 


AND  EMINENT  DOMAIN.  97 

834.  A  city  has  no  right  to  so  obstruct  its  streets,  or  to  authorize 
the  same  to  be  done,  as  to  deprive  property  holders  from  free  access 
to  and  from  their  lots  abutting  on  the  same.    If  it  permits  the  use  of 
a  street  for  an  approach  to  a  bridge,  it  must  see  that  the  approach 
is  so  constructed  as  not  to  produce  injury  to  adjacent  property  hold- 
ers.   Ib. 

835.  BRIDGE  APPROACHES  IN  STREET.    If  a  city  authorizes  a 
bridge  company  to  construct  an  approach  to  a  bridge  in  a  public 
street,  whereby  the  street  is  obstructed  in  front  of  and  along  a  party's 
lot  abutting  on  the  same,  rendering  the  use  of  the  street  in  front  of 
the  lot  impassable  and  useless,  and  whereby  ingress  and  egress  to  the 
lot  from  the  street  is  prevented,  and  water  is  caused  to  drain  and  flow 
upon  the  lot  and  fill  the  cellar  thereon,  and  by  reason  of  the  noise, 
confusion,  shaking  and  the  falling  of  dirt  and  dust  caused  by  teams 
and  wagons  passing  over  the  approach,  the  plaintiff's  tenants  occupy- 
ing the  houses  on  the  lot  are  driven  out,  the  city  will  be  liable  to  such 
lot  owner  for  all  the  damages  thus  caused  to  his  premises.    Ib. 

836.  TUNNEL  IN  STREET.    Where  a  city,  under  legislative  author- 
ity, constructs  a  tunnel  in  a  street  in  a  proper  manner  and  without 
unreasonable  delay,  no  action  lies  against  it  in  favor  of  an  adjoining 
lot  owner  whose  property  has  received  no  physical  injury.    Chicago  v. 
Rumsey,  87  111.  348. 

837.  Where  the  city  owns  the  fee  in  its  streets,  it  is  not  liable 
under  the  constitution  of  1848  to  the  owner  of  a  lot  abutting  on  a 
street  for  damages  claimed  on  account  of  constructing  a  tunnel  in 
the  street  in  front  of  his  property,  when  the  work  is  properly  planned 
and  executed  under  the  sanction -of  law,  and  no  physical  injury  is 
done  to  his  property,  and  there  is  enough  of  the  street  left  for  ordi- 
nary travel.    Ib. 

838 .  WATER  TANK  IN  STREET.    The  erection  of  a  water  tank  in 
the  center  of  a  street,  occupying  one-half  of  the  width  thereof,  and 
the  erection  and  operation  of  a  steam  engine  in  connection  therewith, 
even  for  the  purpose  of  supplying  the  city  and  its  residents  with 
water,  is  not  an  use  to  which  the  street  can  appropriately  be  put,  and 
the  owner  of  an  adjoining  lot  does  not  take  subject  to  such  easement, 
and  may  maintain  an  action  against  the  city  for  any  damage  to  his 
property.    City  of.  Morrison  v.  Hinkson,  87  111.  587. 

839.  VIADUCT  OR  BRIDGE    IN    STREET— physical  injury.      To 
authorize  a  recovery  by  an  individual  for  an  injury  to  his  property  by 
the  construction  of  a  public  improvement  under  the  authority  of  a 
statute,  it  must  appear  that  there  has  been  some  direct  physical  dis- 
turbance of  a  right,  either  public  or  private,  which  the  plaintiff  enjoys 
in  connection  with  his  property,  and  which  gives  to  it  an  additional 
value,  and  that  by  reason  of  such  disturbance  he  has  sustained  a 
special  damage  with  respect  to  his  property  in  excess  of  that  sustained 
by  the  public  generally,  and  which  by  the  common  law  in  the  absence 
of  any  constitutional  or  statutory  provision,  would  have  given  a  right 
of  action.    Rlgney  v.  Chicago,  102  111.  64. 

840.  Where  a  city  constructed  a  viaduct  or  bridge  on  a  public 
street  near  its  intersection  with  another  street,  thereby  cutting  off 
access  to  the  first  named  street  from  the  plaintiff's  house  and  lot  over 
or  along  the  street  intersected,  except  by  means  of  a  pair  of  stairs, 
whereby  the  plaintiff's  premises  fronting  on  the  latter  street  and  near 
the  obstruction,  were  permanently  damaged  and  depreciated  in  value 
by  reason  of  being  deprived  of  such  access,  it  was  held  that  the  city 
was  liable  to  the  plaintiff  in  damages.    Ib. 

841.  The  owners  of  property  bordering  upon  streets,  have  as  an  in- 
cident to  their  ownership,  a  right  of  access  by  way  of  the  streets, 

—8 


98  RAILROADS,  WAREHOUSES, 

which  cannot  be  taken  away,  or  materially  impaired  by  the  city  with- 
out incurring  legal  liability  to  the  extent  of  the  damage  thereby  occa- 
sioned; and  to  this  extent  it  maybe  said  there  is  a  special  trust  in  favor 
of  adjoining  property  holders.  Chicago  v.  Union  Building  Assoc., 
102  111.  379. 

842.  USE  OF  STREET  FOB  RAILROAD.    The  grant  of  the  use  of  a 
street  to  a  railway  company,  whereby  access  to  and  egress  from  a  lot 
is  not  prevented,  will  not  render  a  city  liable  for  damages  to  the 
owner.    East  St.  Louis  v.  O'Flynn,  119  111.  200. 

843.  For  an  injury  to,  or  an  obstruction  of  a  public  and  common 
right,  no  private  action  will  lie  for  damages  of  the  same  kind  as  those 
sustained  by  the  general  public,  although  the  private  property  may  be 
injured  much  greater  in  degree.    Ib. 

844.  So,  a  lot  owner  in  a  city  cannot  maintain  an  action  against 
the  city  for  the  vacation  of  a  portion  of  a  public  street,  not  bordering 
on  his  lot  and  not  necessary  to  afford  him  access  thereto.    Ib. 

845.  Where  a  railway  company  is  authorized  by  ordinance  to  build 
its  road  within  a  part  'of  the  street,  which  is  thereby  legally  vacated, 
the  city  cannot  be  held  liable  to  a  lot-owner  whose  property  is  not  ad- 
jacent to  the  vacated  street  for  any  act  done  by  the  company  not 
authorized  by  such  ordinance.    Ib. 

LIABILITY  FOB  INJURY  BY  USE  OF  STEEETS. 

846.  .PRIOR  TO    CONSTITUTION  OF    IS1Q— injunction — damages. 
Municipal  authorities  having  the  exclusive  control  over  the  streets 
may  give  permission  to  a  railway  company  to  locate  its. tracks  along  a 
street,  and  the  owner  of  lots  along  such  street  cannot  enjoin  the  lay- 
ing of  the  track  or  receive  any  damages  or  compensation  for  such  use 
of  the  street.    Moses  v.  P.,  Ft.  W.  &  Ch.  It.  R.,  21  111.  516. 

847.  NEW  BURDEN— damages  for.    Where  the  public  has  acquired 
an  easement  over  a  person's  land  for  an  ordinary  street  or  highway, 
the  location  of  the  track  of  a  railroad  on  the  same,  is  an  additional 
burden  and  servitude  upon  the  land,  which  will  entitle  the  owner  to 
additional  compensation.    /.,  B.  &  W.  R.  R.  v.  Hartley,  67  111.  439. 

848 .  But  where  the  fee  of  the  street  is  in  the  municipality  granting 
the  right  of  way  in  the  same  to  a  railway  company,  the  owners  of  lots 
fronting  on  such  streets,  cannot  enjoin  the  laying  of  the  track  in  the 
street,  nor  receive  compensation  for  the  use  of  the  street  so  appro- 
priated.   77). 

849.  FOR  WHAT  INJURY  LIABLE.    Where  the  fee  of  a  street  is  in 
the  adjacent  land-owner,  the  town  or  city  may  grant  the  right  to  a 
railway  company  to  lay  its  track  along  or  across  the  same,  but  the 
company  avails  of  its  privilege  at  its  peril.    If  in  laying  its  track,  it 
causes  a  private  injury  to  him  who  owns  the  fee  in  the  adjoining 
premises,  it  will  be  liable  to  him  for  the  damages.    Ib. 

850.  The  clause  of  the  constitution  that  "  private  property  shall 
not  be  taken  or  damaged  for  public  use  without  just  compensation  " 
must  receive  a  reasonable  and  practicable  interpretation.    Where  the 
property  is  not  taken,  the  damages  must  be  real  and  not  speculative. 
If  the  property  is  not  worth  less  in  consequence  of  the  construction 
of  a  railroad  in  its  vicinity,  or  upon  a  street  upon  which  the  lot  abuts, 
than  if  no  road  were  constructed,  the  owner  will  not  be  entitled  to 
damages,  and  cannot  enjoin  the  construction  of  the  road.    Ch.  &  Pac. 
R.  R.  v.  Francis,  70  111.  238. 

851.  While  a  town  or  city  may  rightfully  permit  a  railway  com- 
pany to  occupy  and  use  a  public  street  for  right  of  way,  yet  under  the 


AND  EMINENT  DOMAIN.  99 

organic  law  of  the  state  the  company  must  be  held  responsible  to 
property  owners  upon  the  street  for  such  direct  and  physical  damage 
as  shall  result  from  the  construction  of  the  road,  or  its  operation  after 
completion.  Stone  v.  F.,  P.  &  N.  W.  R.  R.,  68  111.  394. 

852.  THROWING  SURFACE  WATER  ON  LAND.    If  a  railway  com- 
pany, in  constructing  its  road  along  a  public  street,  under  license 
from  the  corporate  authorities,  turns  waste  and  surface  water  and 
mud  upon  the  adjacent  premises  of  another,  it  will  be  liable  to  the 
owner  in  damages  for  the  injury  thereby  done.    St.  L.,  V.  &  T.  H.  R. 
R.  v.  Capps,  72  111.  188. 

853.  RIGHT  TO  HAVE  DAMAGES  ASSESSED.    Where  no  part  of  a 
person's  land  is  taken  or  sought  to  be  condemned  by  a  railway  com- 
pany, he  will  not  be  entitled  to  have  proceedings  instituted  to  ascer- 
tain what  damages  his  property  will  sustain  by  the  construction  and 
operation  of  a  railway  upon  adjacent  lands,  but  will  be  left  to  his  action 
at  law.    Stetson  v.  Ch.  &  E.  R.  R.,  75  111.  74. 

854.  INJUNCTION.    A  court  of  equity  will  not  enjoin  the  construc- 
tion and  operation  of  a  railroad  upon  a  public  street  or  other  lands 
not  belonging  to  the  complainant  until  the  damages  to  lots  owned  by 
him  abutting  upon  the  street  are  ascertained  and  paid,  but  will  leave 
him  to  his  action  at  law.    Ib. 

855.  Where  the  fee  of  the  street  is  in  the  adjacent  lot-owner,  sub- 
ject to  public  easement,  the  rule  is  different,  for  the  reason  that  the 
railroad  is  an  additional  burden  on  his  land.    Ib. 

856.  INJUNCTION.    In  case  of  a  claim  of  consequential  damages 
to  land  on  account  of  the  operating  of  a  railroad  where  no  part  of  the 
land  claimed  to  be  affected  is  taken  for  the  use  of  the  road,  a  court  of 
equity  will  not  enjoin  the  use  of  the  railroad  until  such  damages  are 
assessed  and  paid,  nor  will  it,  at  the  suit  of  an  individual,  enjoin  a 
railway  company  from  operating  its  road  laid  in  a  public  street  with- 
out leave  of  the  city,  but  will  leave  the  redress  to  the  public  authori- 
ties.   Patterson  v.  Ch.,  Dan.  &  Vin.  R.  R.,  75  111.  588. 

857.  Where,  after  the  construction  of  a  railroad  over  a  portion  of 
a  lot,  the  owner  erected  a  dwelling  house  upon  the  lot  in  close  prox- 
imity to  the  road,  and  occupied  the  same  as  a  residence,  it  was  held 
that  the  owner  having  built  the  house  with  full  knowledge  that  it 
would  be  affected  by  the  road,  could  not  in  an  action  against  the  rail- 
road company  recover  for  the  loss  he  thus  knowingly  and  voluntarily 
incurred  by  building  the  house  near  the  road,  but  that  so  far  as  the 
house  sustained  a  direct  physical  injury  by  the  company,  which  it  was 
its  duty  to  avoid,  as  against  all  adjacent  property,  the  owner  was  enti- 
tled to  recover.    /.,  B.  &  W.  Ry.  v.  McLaughlin,  77  111.  275. 

858 .  INJUNCTION.    Where  city  authorities  grant  permission  to  a 
railway  company  to  lay  its  track  along  a  street,  the  owners  of  prop- 
erty fronting  on  such  street  cannot  enjoin  the  laying  of  such  tracks, 
nor  be  allowed  any  damage  or  compensation  for  such  use  of  the  street. 
C.,  B.  &  Q.  R.  R.  v.  Mc&innis,  79  111.  269. 

859.  PHYSICAL,  INJURY.    The  liability  of  a  railway  company  to  a 
lot-owner  in  consequence  of  its  use  of  a  public  street  in  front  of  the 
lot  under  license  from  the  city,  is  confined  to  the  direct  physical  injury 
done  to  the  property  by  the  operation  of  the  road.    Ib. 

860.  RIGHT  TO  USE  OF  STREET.    The  grant  in  a  charter  to  a  rail- 
road company  to  run  its  road  through  a  town,  cannot  by  any  reason- 
able or  fair  intendment  operate  as  a  grant  of  the  use  of  the  streets,  or 
either  of  them,  to  the  company.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Holler.  82 
111.  208. 

861.  RIGHT  TO  HAVE  CONDEMNATION.   Under  the  eminent  domain 


100  KAILROADS,  WAREHOUSES, 

act  of  1872,  an  adjoining  land-owner,  where  no  part  of  his  land  is 
actually  taken,  or  sought  to  be  condemned  for  public  use,  is  not  enti- 
tled to  have  proceedings  instituted  to  ascertain  what  damages  his 
property  may  sustain  in  consequence  of  the  construction  and  opera- 
tion of  a  railway  upon  contiguous  or  adjacent  lands  in  which  he  has 
no  interest.  P.  &  R.  I.  Ry.  v.  Schertz,  84  111.  135. 

862.  INJUNCTION.    A  court  of  equity  will  not  enjoin  the  use  of  a 
railroad  track  upon  a  public  street  until  the  adjoining  land-owner's 
damages  have  been  assessed  and  paid,  even  though  the  company  may 
be  insolvent.    Ib. 

863 .  The  rule  is  well  settled  that  for  any  obstruction  to  streets  not 
resulting  in  special  injury  to  the  individual,  the  public  only  can  com- 
plain.   If  a  special  injury  results  to  a  person,  he  may  have  his  action 
against  the  wrong-doer.    McDonald  v.  English,  85  111.  232. 

864.  POWER  OF  CITY  OVER  STREETS.    A  city  has  the  power  to 
allow  the  construction  of  a  railroad  upon  or  over  its  streets,  and  the 
public  will  be  bound  by  whatever  may  be  lawfully  done  in  regard  to 
the  streets  by  the  city.    C.  &  N.  W.  Ry.  v.  People,  91  111.  251. 

865.  ADDITIONAL  TRACKS.    A  lot  owner  has  a  right  of  action  to 
recover  damages  to  his  lot  from  the  unauthorized  laying  of  additional 
railroad  tracks  in  the  street  fronting  his  lot,  whereby  the  use  of  the 
street  for  all  ordinary  purposes  of  a  highway  is  destroyed,  and  access 
to  his  lot  is  cut  off,  and  for  the  creating  a  nuisance  by  allowing  stock 
cars  to  stand  in  the  street  adjoining  the  lot.    P.,  Ft.  W.  &  Ch.  R.  R.  v. 
Reich,  101  111.  157. 

866.  ACTION — cutting  off  access  to  lot.    Where  railway  tracks  are 
constructed  in  a  public  hig"hway  on  ground  thrown  up  considerably 
above  the  common  level,  under  proper  license,  in  front  of  a  person's 
land,  whereby  he  is  cut  off  from  access  and  egress  from  the  same,  he 
cannot  recover  of  the  company  for  any  injury  or  damage  he  thereby 
sustains  in  common  with  the  public  generally,  but  may  recover  for 
any  damages  he  may  have  sustained  individually  in  respect  to  his  pri 
vate  property  separate  and  distinct  from  the  disturbance  of  the  public 
easement.    Ch.  &  W.  Ind.  R.  R.  v.  Ayres,  106  111.  511. 

LIABILITY   FOE  OTHER  ACTS  THAN  USE   OF  STREETS. 

867.  OBSTRUCTING  FLOW  OF  WATER—  bridges  and  culverts.    An 
individual  or  corporation  constructing  a  road  under  legislative  author- 
ity over  water-courses   on  private  land,  is  bound  to  make  suitable 
bridges,  culverts  or  other  provisions  for  carrying  off  the  water  effec- 
tually, and  to  keep  them  in  suitable  repair.    /.  C.  R.  R.  v.  Bethel,  11 
Bradw.  17. 

868.  If  the  construction  over  a  water-course  is  not  properly  done, 
and  it  is  washed  out  by  an  extraordinary  flood  leaving  the  debris  upon 
the  land  of  an  adjacent  owner  beyond  the  line  of  the  company's  right 
of  way,  the  company  will  not  be  bound  to  remove  the  same.    If  by 
reason  of  its  being  so  lodged,  the  waters  of  the  stream  are  diverted  in 
a  subsequent  freshet,  whether  extraordinary  or  only  ordinary,  it  will 
give  no  cause  of  action  to  the  adjacent  owner  for  damages  resulting 
from  the  last  flood.    Ib. 

869.  FLOODS  CHOKING  UP  CHANNEL — damage  to  adjacent  owner. 
Where  a  corporation  has  exercised  ordinary  care  in  the  construction 
or  repair  of  bridges  and  culverts  over  water-courses  on  private  land, 
and  is  not  otherwise  guilty  of  negligence,  it  cannot  be  made  liable  for 
damages  occasioned  to  an  adjacent  proprietor  by  extraordinary  floods 
choking  up  or  washing  out  the  channel  of  the  stream.    Ib. 


AND  EMINENT  DOMAIN.  101 

870.  OBSTRUCTING  FLOW  OF  WATER.   If  a  railway  company  makes 
an  embankment  near  the  land  of  another  whereby  the  water  is  thrown 
back  on  such  other's  land,  leaving  no  opening  for  the  water  to  escape, 
it  will  be  liable  in  an  action  on  the  case  to  the  owner  of  such  land  for 
all  the  injury  caused  thereby.    Gillham  v.  Madison  Co.  R.  R.,  49  111.  484. 

871.  Where  a  horse  railway  company  constructs  its  road  as  required 
by  ita  charter  and  the  license  of  the  city,  whereby  the  water  is  obstruc- 
ted and  the  premises  of  another  overflowed,  it  will  be  liable  to  the 
owner  of  the  land  so  overflowed,  the  same  as  if  the  roaa  had  been  con- 
structed under  the  directions  of  its  own  engineer.    A.  &  U.  A.  Horse 
Ry.v.Dietz,  50111.  210. 

872.  Where  a  corporation  accepts  its  charter  and  constructs  a  rail- 
way as  therein  authorized,  it  will  be  implied  that  it  will  not  injure 
others  by  its  construction  and  maintenance,  and  if  injury  results  there- 
from, it  must  be  held  responsible  for  the  damages.    Ib. 

873.  FLOODING  PRIVATE  LAND.    A  railroad  company  has  no  right 
by  an  embankment  or  other  artificial  means  to  obstruct 'the  natural 
flow  of  the  surface  water,  and  thereby  force  it  in  an  increased  quan- 
tity upon  the  lands  of  another,  and  if  it  does  so,  it  will  be  liable  for 
the  damages  thereby  caused  to  the  owner.    T.,  W.  &  W.  Ry.  v.  Morri- 
son, 71  111.  616. 

874.  SAME— /rora  manner  of  use.    The  fact  that  a  railway  com- 
pany owns  a  right  of  way  over  the  plaintiff's  land,  does  not  authorize 
it  to  make  such  a  change  thereon  by  structures  or  otherwise  as  to  flow 
water  back  upon  the  land  of  the  plaintiff,  or  others,  and  thereby  inflict 
an  injury.    C.,  R.  I.  &  P.  R.  R.  v.  Carey,  90  111.  514. 

875.  Where  a  railway  company  in  constructing  a  second  track  on 
its  right  of  way  across  land,  obstructs  a  prior  drainage,  so  as  to  dam 
up  and  throw  the  water  back  on  the  plaintiff's  land,  the  depreciation 
in  the  value  of  the  land  caused  solely  by  the  structure  may  be  consid- 
ered as  the  measure  of  damages  as  to  the  real  estate  injured  thereby.  Ib. 

876.  SAME— right  to  remove  obstruction.    If  the  obstruction  caus- 
ing the  injury  is  upon  the  company's  right  of  way,  the  owner  of  the 
land  injured  has  no  right  to  enter  thereon  to  remove  the  same,  and  the 
law  will  not  require  nim  to  commit  a  trespass  to  remove  the  same, 
even  if  it  would  cost  but  a  trifle;  nor  can  the  company  require  such 
owner  to  enter  its  right  of  way  for  such  purpose.    In  such  case,  the 
party  injured  by  the  obstruction  has  the  right  to  claim  it  as  a  perma- 
nent injury,  and  the  jury  to  allow  damages  as  such.    But  if  the  obstruc- 
tion is  on  plaintiff's  land,  he  may  remove  the  same,  and  the  cost  to 
remove  the  same  will  constitute  the  depreciation  to  his  land.    Ib. 

877.  A  railway  company  has  no  right  to  stop,  by  its  embankment, 
the   natural  and  customary  flow  of  the  surface  water  from  higher 
grounds,  and  by  its  ditch  along  its  track,  convey  the  same  upon  the 
premises  of  another  over  whose  land  the  road  is  constructed,  without 
providing  some  sufficient  outlet  for  it  to  pass  off;  and  where  such  per- 
son's land  is  injured  in  consequence  of  the  accumulation  of  such 
surface  water  on  his  land,  the  company  will  be  liable  to  him  for  all 
the  damages  occasioned  thereby.    /.,  N.  W.  &  S.  E.  R.  R.  v.  Cox,  91 
111.  500. 

878.  A  land-owner,  by  giving  a  deed  for  a  right  of  way  over  his 
land  to  a  railway  company,  will  not  be  estopped  from  recovering 
damages  occasioned  by  the  wrongful  construction  of  its  road.    Such 
a  deed  gives  no  right  to  flood  his  remaining  land  with  water  brought 
from  other  land,  the  natural  flow  of  which  would  have  carried  it 
another  way,  where  the  consideration  is  only  for  the  land  conveyed. 
Ib. 

879.  Commissioners    of  highways  are  individually  liable  in  an 


102  EAILBOADS,  WAEEHOUSES, 

action  on  the  case  for  making  a  drain  or  a  ditch  or  an  embankment  so 
near  the  laud  of  a  party,  and  in  so  unskillful  and  careless  a  manner 
as  to  cause  the  rain  and  surface  water  running  from  such  drain,  to 
flow  upon  the  plaintiff's  premises  to  his  injury.  Tearney  v.  Smith,  86 
111.  391. 

880.  NEGLIGENCE  IN  CONSTRUCTING  DRAINS.    The  acquisition  of 
land  for  a  highway,  gives  the  public  the  right  to  construct  a  highway 
over  it  in  the  mode  and  manner  deemed  most  expedient,  and  the 
owner  cannot  afterwards  recover  for  injuries  then  shown  that  he  must 
unquestionably  suffer.    But  such  condemnation  is  no  bar  to  a  suit  by 
the  land-owner  for  a  subsequent  injury  growing  out  of  negligence  and 
unskiilfulness  in  the  public  authorities  in  constructing  drains  in  the 
highway,  resulting  in  serious  injury  to  the  land-owner.    Ib. 

881.  The  maxim  that  no  one  has  the  right  to  use  his  own  so  as  to 
injure  another,  applies  as  well  to  townships  as  to  incorporated  cities 
and  natural  persons.    They  must  exercise  their  right  in  such  a  man- 
ner as  to  inflict  no  avoidable  injury  upon  an  individual.    Ib. 

882.  NEW  BURDEN— injunction.    Where  a  railway  company  ac- 
quiring its  easement  in  a  highway,  takes  it  subject  to  such  rights  as 
the  puulic  have  therein,  that  is,  subject  to  the  right  of  the  public  to 
subject  the  street  to  the  ordinary  and  proper  u0es  of  a  highway,  the 
occupation  of  a  considerable  portion  of  the  street  for  the  construction 
of  a  ditch,  not  for  the  improvement  of  the  street,  but  for  the  purpose 
of  draining  adjacent  lands,  is  a  new  use  of  the  street,  for  which  com- 
pensation must  be  made  in  case  property  is  damaged  thereby.    If  the 
city  has  made  no  provision  to  pay  damages,  the  railway  company  may 
have  the  construction  of  the  ditch  enjoined  until  provision  for  its 
payment  is  made.    Ch.  &  N.  W.  Ry.  v.  Village  of  Jefferson,  14  Bradw. 
615. 

,     MEASURE  OF  DAMAGES. 

TO    CONTIGUOUS    PROPERTY    NONE   OF   WHICH    IS    TAKEN. 

883.  WHEN  TOO  REMOTE.    The  injury  resulting  to  lots  not  taken 
for  the  purpose  of  widening  a  street,  by  making  lots  on  the  enlarged 
street  more  attractive  anu  desirable,  either  for  residence  or  business 
purposes,  and  thus  diminishing  the  value  of  the  former,  is  too  remote 
to  form  the  basis  of  a  recovery.    Hyde  Park  v.  Dunham,  85  111.  569. 

884.  Municipal  authorities  of  cities  and  villages  are  vested  with 
complete  control  over  streets,  and  they  may  contract  or  widen  them 
when,  in  their  opinion,  the  public  good  so  requires;  and  any  damage 
sustained  in  consequence  or  the  exercise  of  such  power  where  prop- 
erty is  neither  taken  nor  directly  damaged  thereby,  is  too  remote  and 
contingent  to  be  allowed.    1  b. 

885.  NUISANCE.    Although  it  is  true  that  a  municipal  corporation 
cannot  authorize  that  which  is  deemed  a  legal  injury  to  the  property 
of  another  without  making  compensation,  yet  the  individual  cannot 
recover  for  every  technical  nuisance  to  the  streets  of  a  city  without 
regard  to  whether  he  has  sustained  special  injury.     McDonald  v. 
English,  85  111.  2232. 

886.  CHANGE  OF  GRADE— pecuniary  loss.    If  private  property  is 
damaged  by  a  change  in  the  grade  of  a  street,  the  recovery  must  be 
measured  by  the  extent  of  the  pecuniary  loss.    If  it  is  benefited  as 
much  as  it  is  damaged,  there  can  be  no  recovery,  and  it  is  error  to 

•refuse  testimony  to  show  that  fact.  City  of  Elgin  v.  Eaton,  83  111. 
535. 

887.  EVIDENCE— profile  of  grade.    In  a  suit  by  the  owner  of  a 
house'  and  lot  to  recover  damages  growing  out  of  a  change  in  the 


AND  EMINENT  DOMAIN.  103 

grade  of  a  street,  after  the  work  is  commenced  and  before  its  comple- 
tion, the  profile  of  the  proposed  improvement  is  proper.    Ib. 

888.  EVIDENCE— depreciation  of  value.    In  an  action  against  a 
railway  company  for  damages  arising  from  a  direct  physical  injury  to 
the  plaintiff's  dwelling,  by  reason  of  running  its  trains  along  a  public 
street  in  front  of  his  premises,  evidence  of  the  general  depreciation  of 
the  value  of  his  property  is  not  admissible,  where  the  witness  is  unable 
to  distinguish  between  damages,  such  as  were  the  result  of  the  injury 
complained  of,  and  such  as  arose^from  other  general  causes.    Ch.  & 
E.  III.  R.  R.  v.  Hall,  8  Bradw.  621. 

889.  EVIDENCE— what  required.    In  an  action  against  a  railroad 
company  for  injuries  to  adjacent  property  caused  by  the  running  of 
trains,  where  the  declaration  alleges  an  injury  to  the  possession  of  the 
plaintiff,  he  must  prove  possession  of  the  premises,  the  injurious  act 
alleged  to  have  been  done,  and  the  damages  resulting  therefrom .    Cfi. 
&  E.  III.  R.  R.  v,  Loeb,  8  Bradw.  627. 

890.  ONLY  DAMAGES  PECULIAR  TO  PROPERTY.    Where  a  railroad 
is  built  and  operated  through  a  street,  the  owner  of  land  abutting  011 
such  street  is  not  entitled  to  recover  of  the  railway  company  all  the 
damages  sustained  by  him  by  the  location  and  operation  of  the  road, 
including  the  loss  by  depreciation  in  the  market  value  of  his  prop- 
erty, ana  which  are  common  to  other  owners  or  the  public,  but  his 
right  to  recover  must  be  limited  to  such  damages  as  are  peculiar  to 
his  property,  and  which  are  of  a  physical  nature,  such  as  tne  cutting 
off  of  access  to  his  premises,  jarring  of  his  buildings,  casting  cinders 
and  smoke  upon  his  dwelling,  &c.    Oh.  &  W.  Ind.  2i.  2i.  v.  Berg,  10 
Bradw.  607. 

891.  ELEMENTS — obstructing  street.     On  an  assessment  of  dam- 
ages to  an  adjoining  lot  owner  oy  the  location  and  building  of  a  side 
track  of  a  railroad  in  a  public  street,  it  is  error,  by  an  instruction,  to 
exclude  from  the  estimate  of  damages,  the  obstruction  of  the  street  by 
the  running  of  trains.    Mix  v.  L.  B.  &  M.  Ry.,  67  IJ1.  319. 

892.  An  ordinance  prohibiting  the  obstruction  of  streets  by  rail- 
way trains  for  more   than  fifteen  minutes  will  not  legalize  such 
obstruction  for  that  length  of  time  so  as  to  exclude  it  from  the  esti- 
mate of  damages  to  contiguous  property  that  may  be  injuriously 
affected  thereby.    Ib. 

893.  EVIDENCE — as  to  uses  of  property.    On  the  assessment  of 
damages  to  lots  abutting  upon  a  street  sought  to  be  taken  for  a  side 
track  of  a  railroad,  the  owner  gave  evidence  that  the  proposed  loca- 
tion we  uld  render  his  lots  useless  for  business  purposes:  Held,  compe- 
tent for  the  railway  company  in  rebuttal,  to  show  that  the  property 
could  be  beneficially  used  for  warehouse  purposes,  or  lor  any  other 
purpose.    Mix  v.  L.  B.  &  M.  Ry.,  67  111.  3iy. 

894.  INSTRUCTION — as  to  measure.    In  such  a  case,  the  court 
instructed  the  jury  that  the  damages  to  be  allowed  the  lot-owner  could 
only  be  such,  in  kind,  as  lots  not  lying  or  abutting  on  the  same  street, 
but  in  the  vicinity,  did  not  sustain  in  any  degree:  Held,  erroneous,  as 
virtually  cutting  off  all  claim  for  damages.    Ib. 

895.  In  the  same  case,  the  court  instructed  that  the  law  did  not 
give  indemnity  for  all  losses  or  damages  occasioned  by  the  building  of 
a  railroad,  such  as  inconvenience  arising  from  the  crossing  of  railroad 
tracks  by  the  public  or  by  individuals,  or  from  noise  and  confusion  of 
passing  trains,  smoke  from  the  same,  or  frightening  horses,  &c.:  Held, 
as  applicable  to  the  case  where  the  track  was  along  a  street  within 
ten  to  eighteen  feet  of  the  front  line^of  the  lots  abutting  on  the  street, 
that  the  instruction  was  improper,  and  calculated  to  mislead  the  jury. 
Ib. 


104  EAILEOADS,  WAREHOUSES, 

896.  EVIDENCE — ordinance.     On  the  assessment  of  damages  to 
lots  by  the  location  of  a  side  track  in  an  adjoining  street,  where  the 
petition  states  that  such  track  is  to  be  constructed  and  maintained 
according  to  an  ordinance,  the  ordinance  is  proper  evidence  on  the 
question  of  damages,  as  tending  to  show  the  nature  of  the  work  and 
the  probable  use  of  the  street.    Ib. 

897.  DECLARATION — statement  of  the  injury.    In  a  suit  against  a 
railway  company  for  damages  caused  to  plaintiff's  lots  and  property, 
the   declaration  averred  in  substance,  that  the  plaintiff  owned  and 
occupied  as  a  residence  certain  property  fronting  on  a  certain  public 
street;  that  the  defendant  constructed  along,  upon  and  over  such 
street  its  railroad,  and  run  daily  its  locomotives  and  trains  thereon, 
and  that  smoke  and  cinders  were  cast  and  thrown  from  the  engines 
and  locomotives  in  and  upon  the  property  of  the  plaintiff,  thereby 
greatly  damaging  the  same:  Held,  that  the  declaration  showed  a  good 
cause  of  action.    Stone  v.  F.  P.  &  N,  W.  R.  R.,  68  111.  394. 

898.  DAMAGE  BY  BRIDGE.    To  property  on  river.    The  state  can 
not  take  or  damage  a  party's  land  fronting  upon  or  in  the  bed  of  a 
river  without  first  making  compensation  therefor,  nor  can  it  author- 
ize a  railway  company  to  do  the  same.    If  such  a  company,  under  its 
charter,  erects  a  bridge  across  a  river,  and  the  property  of  another 
bounded  by  the  stream  is  taken  or  damaged  thereby,  a  right  of  action 
exists  in  his  favor;  but  he  can  only  recover  for  damages  which  are 
special  to  his  property,  and  not  for  such  as  are  incidental  to  and  are 
shared  by  the  public  at  large.    Ch.  &  Pac.  R.  R.  v.  Stein,  75  111.  41. 

899.  MEASURE — injury  to  market  value.    Where  the  erection  of  a 
railroad  bridge  across  a  river  causes  a  permanent  injury  or  deprecia- 
tion in  the  value  of  a  lot  in  the  immediate  vicinity,  which  is  used  for 
dock  purposes,  such  injury  is  a  proper  element  of  damages  in  a  suit 
by  the  owner  against  the  company,  and  it  is  proper  to  allow  the  lot- 
owner  to  show  such  damage  by  proving  the  value  of  his  property 
before  the  erection  of  the  bridge  and  its  value  after;  or,  in  other  words, 
to  prove  how  much  less  the  property  would  sell  for  in  consequence  of 
the  building  of  the  bridge.    Ib. 

900.  DAMAGE  BY  APPROACH  TO  BRIDGE.    In  an  action  by  an 
adjacent  lot-owner  for  damages  occasioned  by  the  construction  of 
approaches  to  a  bridge,  evidence  of  damage  caused  by  the  bridge 
employes  throwing  dust  and  dirt  from  the  bridge  in  baskets,  is  not 
admissible;  nor  is  evidence  of  damage  arising  from  the  diversion  of 
travel  and  trade.    It  is  competent  in  such  action  to  show  that  the 
diminution  in  value  of  the  property  arises  from  the  general  depression 
in  trade.    E.  St.  L.  v.  Wiggins  Ferry  Co.,  11  Bradw.  254. 

901.  SAME — evidence.     Where   the   plaintiff  claims   damage    by 
reason  of  the  jar  caused  by  the  passage  of  trains  over  the  bridge,  it  is 
competent  upon  cross-examination  to  show  how  the  opposite  approach 
is  constructed,  and  that  there  is  more  vibration  there,  and  that  build- 
ings at  the  opposite  approach  are  not  injured  by  the  vibrations.    76. 

902.  RAILWAY  IN  STREET— element  of  damage.    In  an  action  to 
recover  damages  caused  to  a  house  and  lot  by  the  construction  of 
railroad  tracks  in  a  street  in  close  proximity  to  the  plaintiff's  property, 
the  true  measure  of  damages  is  the  loss  sustained  by  the  nuisance,  the 
injury  from  jarring  the  building  and  the  throwing  of  cinders  and 
smoke  upon  the  plaintiff's  premises,  and  the  depreciation  of  the  value 
of  the  property  by  these  causes  may  be  considered;  but  not  general 
depreciation  in  value  from  other  causes,  such  as  mere  inconvenience 
in  approaching  or  leaving  the  property,  or  the  noise  and  confusion  in 
the  vicinity.    The  injury  must  be  physical.    C.,  M.  &  [St.  P.  R.  R.  v. 
Hall,  90  111.  42. 


AND  EMINENT  DOMAIN.  105 

903.  DEPRECIATION  IN  VALUE— benefits.     Damage^  to  property 
not  taken  for  public  use,  to  be  recoverable,  must  be  physical  and  real, 
and  not  speculative,  and  it  must  depreciate  the  value  of  the  property 
or  its  use.    The  depreciation  is  to  be  determined  by  comparing  its 
value  before  and  after  the  structure  which  produced  the  injury,  and 
any  benefits  thus  conferred  should  be  considered  as  well  as  injury  in- 
flicted by  the  structure,  in  estimating  the  damages.    Ib. 

904.  ELEMENTS  or — depreciation  in  value.    Under  sec.  13,  Art.  2, 
of  the  constitution,  a  recovery  may  be  had  in  all  cases,  where  private 
property  has  sustained  a  substantial  damage  by  the  making  and  using 
of  an  improvement  that  is  public  in  its  character,  as  a  railway,  and  it 
is  not  required  that  the  damage  shall  be  caused  by  trespass  or  an 
actual  physical  invasion  of  the  owner's  real  estate;  but  if  the  construc- 
tion and  operation  of  a  railroad  or  other  public  improvement  is  the 
cause  of  the  damage,  though  merely  consequential,  the  party  damaged 
may  recover.    Depreciation  in  the  value  of  the  land  fronting  on  a 
highway  caused  by  obstructing  access  to  it,  is  a  proper  element  of 
damage.    Ch.  &  W.  Ind.  R.  R.  v.  Ayres,  106  111.  511. 

905.  Where  the  usual  outlet  of  water  is  obstructed  so  as  to  overflow 
the  plaintiff's  lands,  he  may  recover  for  the  loss  of  or  injury  to  the 
crop  of  hay,  &c.,  or  the  expense  of  securing  them,  in  addition  to  the 
loss  by  the  depreciation  of  the  land.    C.,  R.  I.  &  P.  R.  R.  v.  Casey,  90 
111.  514.    The  depreciation  in  the  value  of  the  land  caused  solely  by  the 
structure,  may  be  considered  as  the  measure  of  damages  as  to  the  real 
estate  injured.    Ib. 

906.  SAME— instruction  too  broad.    In  an  action  for  obstructing 
water,  so  as  to  overflow  the  plaintiff's  land,  if  the  court  instructs  the 
jury  that  the  depreciation  in  the  value  of  the  land  may  be  considered,  it 
will  be  error  to  further  instruct  that  they  may  consider  the  inconven- 
ience and  damage  in  separating  the  farm,  the  damage  caused  to  the 
land  overflowed  and  to  that  not  overflowed,  and  the  expense  of  mak- 
ing roads  and  bridges,  as  these  are  included  in  the  depreciation  to  the 
land.    C.,  R.  I.  &  P.  R.  R.  v.  Carey,  90  111.  514. 

907.  ELEMENTS — evidence.    In  an  action  by  a  lot-owner  against  a 
railway  company  to  recover  damages  to  his  lot  caused  by  the  construc- 
tion and  operation  of  a  railroad  along  a  public  street  in  front  of  the 
lot,  it  is  error  to  allow  the  plaintiff  to  prove  the  difference  in  value 
of  the   lot  and  its  rental  value  with  or  without  the  road,  as  such 
difference  in  part  may  be   the  result  of  inconveniences   for  which 
the  law  affords  no  remedy.    C.,  B.  &  Q.  R.  R.  v.McGinnis,  79  111.  269. 

908.  EXCAVATION  IN  STREET — evidence  as  to  depreciation  in 
value.    If  a  railway  company,  in  constructing  its  track  along  a  public 
street,  makes  a  deep  excavation  therein  in  front  of  the  plaintiff's  lots 
and  business  house,  he  will  be  entitled  to  recover  as  damages  what- 
ever diminution  in  value  his  real  estate  may  undergo;  and  to  show 
this,  it  is  proper  to  prove  the  market  value  of  the  property  before  and 
since  the  injury,  leaving  out  of  view  any  inflated  value  arising  from 
any  cause.    Proof  of  the  rental  value,  before  and  since  the  construc- 
tion of  the  road,  will  furnish  some  criterion  by  which  to  determine  the 
extent  of  the  injury.  St.  L.,  V.  &  T.  H.  R.  R.  v.  Capps,  67  111.  607. 

909 .  N  ON- ACTIONABLE  INCONVENIENCES.    The  difficulty  of  cross- 
ing a  railroad  track  in  a  public  street,  the  detention  of  trains,  the 
frightening  of  horses,  the  danger  to  persons  crossing  the  track,  and 
the  like,  are  inconveniences  which  property  owners  on  the  street  have 
to  suffer,  and  for  which  they  cannot  recover  in  a  suit  for  damages. 
Stone  v.  F.  P.  &  N.  W.  R.  R.,  68  111.  394. 

910.  BENEFITS.    In  estimating  the  damages  done  to  property  by 
the  appropriation  of  a  public  street  adjacent  thereto,  to  public  use 


106  RAILROADS,  WAEEHOUSES, 

other  than  as  a  street,  where  no  part  of  the  private  property  is  taken, 
the  effect  on  the  whole  property  should  be  considered  and  not  merely 
a  part  of  it.  If  one  part  of  the  same  property  is  damaged,  and  another 
part  specially  benefited,  so  that  the  value  of  the  whole  is  not  dimin- 
ished, then  there  is  no  damage  done;  but  any  general  benefit  common 
to  all  other  property  affected  by  the  work  should  not  be  considered  in 
determining  wnether  the  property  is  benefited  as  much  as  injured. 
Shawneetown  v.  Mason,  82  111.  337. 

MEASURE. 

LIABILITY  UNDER  ORDINANCE  FOR  RAILROAD  IN  STREET. 

911.  INJURY  TO  ADJACENT  PROPERTY  AND  BUSINESS.    Where  a 
railway  company  constructs  its  track  along  a  public  street  under  an 
ordinance  requiring  it  to  pay  all  damages  thereby  occasioned,  and  in 
so  doing,  makes  a  deep  excavation  in  front  of  a  person's  lots  and  place 
of  business,  which  diminishes  the  value  of  his  lots  and  injures  his 
business,  Dy  making  his  place  difficult  of  access  and  dangerous  for 
teams  to  approach,  the  company,  by  acting  under  such  ordinance,  will 
become  liable  to  pay  the  lot-owner  all  damages  caused  to  his  property, 
and  also  to  his  business,    tit.  L.,  V.  &  T.  H.  R.  R.  v.  Capps,  67  111.  607. 

912.  INJURY  TO  BUSINESS.    Where  a  party's  place  of  business  is  so 
seriously  affected  by  the  construction  of  a  railroad  in  the  street  in 
front  of  the  same,  as  to  make  it  necessary  to  remove  to  another  place, 
he  will  be  entitled  to  damages  for  interruption  to  his  business  during 
such  time  as  would  have  been  necessarily  employed  in  accommodating 
himself  to  another  place  of  business  equally  eligible,  and  his  removal 
thereto.    During  such  time  the  damage  to  his  business  should  be  ascer- 
tained by  proof  of  the  probable  and"  reasonable  profits  which  might 
have  been  made,  had  there  been  no  interruption.    The  necessary  and 
reasonable  expenses  of  removal  is  also  a  proper  element  of  damage. 
Ib.    See  same  case,  72  111.  188. 

913.  SAME — evidence  of  decline  in  business.    In  a  suit  by  a  mer- 
chant against  a  railway  company  to  recover  damages  to  his  business 
caused  by  making  deep  excavations  in  the  street  in  front  of  his  place 
of  business,  the  plaintiff  proved  the  extent  of  his  business  in  the  pre- 
ceding year  and  the  decrease  in  the  year  after.    The  company  then 
offered  to  prove  the  fact  of  a  general  decline  in  the  business  in  which 
the  plaintiff  was  engaged,  which  the  court  refused :    Held,  error  to 
refuse  the  evidence.    Ib. 

914.  ORDINANCE — extent  of  damages  under.     Where  a  railway 
company  constructs  its  road  in  a  public  street  under  an  ordinance  of 
the  town  granting  the  privilege  on  condition  that  it  shall  pay  all  dam- 
ages that  may  accrue  to  property  owners  by  reason  thereof,  it  will  be 
held  liable  to  such  owners  for  all  damages  done  to  them  during  the 
progress  of  the  work,  as  well  as  for  such  as  are  caused  by  the  road 
when  completed.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Capps,  72  111.  188. 

915.  INJURY  TO  BUSINESS— evidence.    Where  a  railway  company 
accepts  a  grant  of  the  right  of  way  over  a  public  street  upon  condition 
that  it  shall  pay  all  damages  caused  to  property  owners  upon  the 
street,  a  lot-owner  in  a  suit  against  the  company  for  damages,  may 
show  that  his  store  was  situated  011  the  corner  of  the  street  along 
which  the  road  ran  and  another  street;  that  dirt  was  thrown  up  at  the 
corner,  so  that  for  a  time  travel  was  entirely  interrupted;  that  by 
reason  of  the  occupation  of  the  street,  there  was  but  a  narrow  passage 
left  for  travel,  and  there  was  not  room  enough  for  teams  to  turn  in 
the  street;  that  teams  could  not  approach  the  store  on  account  of  the 
running  of  the  cars;  that  there  was  no  place  to  hitch  teams  or  unload 


AND  EMINENT  DOMAIN.  107 

conveniently;  and  on  account  of  the  frequent  passage  of  trains,  it  was 
dangerous  for  teams  to  be  left  standing,  or  to  pass  along  the  street  in 
front  of  the  store,  as  tending  to  show  in  what  manner  the  property 
was  injuriously  affected.  Ib. 

916.  Where  a  railway  company  builds  its  road  along  the  street  of  a 
town  under  an  ordinance  granting  the  privilege  upon  condition  that 
it  shall  pay  all  damages  accruing  to  property  holders  on  such  street, 
by  reason  of  the  construction  of  the  road,  it  will  be  liable  to  a  lot- 
owner  for  the  deterioration  in  the  value  of  his  lot  in  consequence  of 
the  laying  of  the  track,  and  for  damages  for  interruption  to  his  busi- 
ness during  a  reasonable  time  in  which  to  provide  another  equally 
eligible  place,  and  remove  thereto;  and  the  damage  to  his  business 
during  such  time  should  be  ascertained  by  proof  of  the  probable  rea- 
sonable profits  which  might  have  been  made.    The  property  owner,  if 
he  chooses  to  remain  and  submit  to  the  interruption  in  his  business 
and  loss  of  profits,  may  nevertheless  recover  from  the  company  as 
damages,  the  necessary  cost  of  avoiding  such  loss  by  a  removal.  Ib. 

917.  ORDINANCE— liability  of  company  under— for  what  injuries, 
"Where  an  ordinance  of  a  town  authorizing  a  railway  company  to 
build  its  road  on  a  street  provides  that  the  company  shall  pay  all  dam- 
ages that  may  accrue  to  property  owners  on  such  street  by  the  con- 
struction of  the  road,  an  action  will  lie  on  the  ordinance  against  the 
company  in  favor  of  any  property  owner  who  is  injured  by  the  con- 
struction of  the  road,  either  by  depreciation  in  value  of  his  property 
or  loss  of  business  sustained  during  the  building  of  the  road,  and  after 
its  completion,    tit.  L.,  V.  &  T.  H.  R.  R.  v.  Halter,  82  111.  208. 

918.  In  an  action  against  a  railway  company  upon  an  ordinance 
of  a  town  permitting  it  to  lay  its  track  on  a  street,  and  providing  for 
the  payment  of  damages  by  the  company  to  property  owners,  the 
parties  will  be  governed  and  their  rignts  measured  by  the  ordinance 
without  reference  to  the  constitutional  provision  in  regard  to  com- 
pensation for  property  taken  or  damaged  for  corporate  purposes,  or  to 
the  common  law  on  the  subject  as  announced  m  Moses  v.  P.,  J?t.  W. 
&  Ch.  R.  R.,  21  111.  516,  and  Murphy  v.  Chicago,  29  111.  279.    St.  L.,  V. 
&  T.  H.  R.  R.  v.  Nailer,  82  111.  2u8. 

919.  MEASURE  OF  DAMAGE.    In  a  suit  under  a  town  ordinance 
providing  for  the  payment  of  damages  to  property  owners  occasioned 
by  constructing  a  railroad  track  in  the  street,  tne  difference  in  the 
value  of  property  caused  by  the  construction  of  the  road,  is  the  meas- 
ure of  damages,  and  this  may  be  shown  by  a  comparison  of  the  sales 
of  other  property  similarly  situated  before  and  after  the  construction 
of  the  road,  or  by  the  difference  in  its  rental  value,  if  held  for  the  pur- 
pose of  renting;  but  if  not  held  for  that  purpose,  then  the  difference 
in  rental  value  would  not  be  a  criterion.    Ib. 

920.  In  such  case,  if  there  have  been  no  sales  of  property  of  a 
character  similar  to  that  claimed  to  be  injured,  either  before  or  after 
the  construction  of  the  road,  from  which  tiie  depreciation  in  value  can 
be  ascertained,  it  is  proper  to  resort  to  evidence  of  the  noise  and  jar- 
ring of  the  earth,  and  smoke  and  dust  caused  by  passing  trains,  render- 
ing the  house,  if  a  dwelling,  uncomfortable,  and  injuring  the  furniture 
and  walls  of  the  house,  as  an  aid  to  the  jury  in  estimating  the  depre- 
ciation in  value  of  the  property.    Ib. 

921.  PAST,  PRESENT   AND   FUTURE   DAMAGES.    In   an   action 
brought  for  a  deterioration  in  the  value  of  real  estate  occasioned  by  a 
nuisance  of  a  permanent  character,  or  which  is  treated  as  permanent 
by  the  parties,  all  damages  for  the  past  and  the  future  inj  ury  of  the 
property  may  be  recovered,  and  one  recovery  in  such  a  case  is  a  barto  all 
future  actions  for  the  same  cause.  Ch.  &  E.  III.  R.  R.  v.  Loeb,  118  111.  203. 


108  EAILEOADS,  WAEEHOUSES, 

922.  Where  private  lots  in  a  city  are   physically  damaged  or 
injured  ia  value  by  the  construction  and  operation  of  a  railroad  in 
close  proximity  thereto  along  a  public  street,  the  right  of  action,  if 
any  exists,  is  vested  in  the  owner  of  the  lots  immediately  upon  the 
construction  of  the  road,  to  recover  for  all  damages,  past,  present  and 
future,  and  a  subsequent  grantee  of  the  lots  cannot  maintain  an 
action  at  all  for  the  proper  use  and  operation  of  the  road  after  his 
purchase.    Ib. 

923.  The  just  compensation  to  be  made  for  damage  to  land  is 
intended  as  an  indemnity,  not  for  successive  constantly  accruing 
damages  as  they  may  afterwards  be  suffered,  but  for  all  the  land- 
owner may  suffer  from  all  the  future  consequences  of  the  careful  and 
prudent  operation  of  the  proposed  public  improvement.    Ib. 

924.  JUDGMENT  ON  REPORT — effect  of  order  and  pay- 
ment. §  10.  The  judge  or  court  shall,  upon  such  report, 
proceed  to  adjudge  and  make  such  order  as  to  right  and  jus- 
tice shall  pertain,  ordering  that  petitioner  enter  upon  such 
property,  and  the  use  of  the  same,  upon  payment  of  full  com- 
pensation, as  ascertained  as  aforesaid:  and  such  order,  with 
evidence  of  payment,  shall  constitute  complete  justification 
of  the  taking  of  such  property.  [E.  S.  1887,  p.  647,  §  10;  S. 
&  0.,  p.  1050,  §  10;  Cothran,  p.  649,  §  10.] 

925.  EXECUTION.    Unless  the  statute  so  provides,  it  is  error  to 
award  an  execution  for  the  damages  assessed  or  the  costs  of  the  pro- 
ceeding.    Ch.  &  Mil.  R.  R.  v.  Bull,  20  111.  218. 

926.  FORM  OF,  UNDER  ACT  OF  1852.    The  form  of  the  judgment 
in  a  proceeding  to  condemn  land  under  the  act  of  1852  should  conform 
to  that  prescribed  by  §  15  of  the  act.     Wilson  v.  R.,  R.  I.  &  St.  L.  R. 
R.,  59  111.  273. 

927.  CONDITIONAL— execution.    No  execution  can  issue  upon  a 
judgment  of  condemnation  for  the  damages  awarded.    The  judgment 
should  not  be  absolute  for  the  payment  of  the  sum  found.    The  only 
mode  to  coerce  payment  is  by  mandamus.     Cook  v.  South  Park 
Comrs.,  61  111.  115. 

928.  EXECUTION.    It  is  error,  in  a  proceeding  under  the  act  of 
1852,  to  award  execution  against   the   company   for  the  damages 
assessed.    St.  L.  &  S.  E.  Ry.  v.  Lux,  63  111.  523. 

929.  The  judgment  must  be  an  order  authorizing  the  petitioner  to 
enter  upon  the  land  and  use  the  same  upon  payment  of  the  compen- 
sation found  by  the  jury,  but  there  should  be  no  award  of  execution 
therefor.    P.,  P.  &  J.  R.  R.  v.  P.  &  S.  R.  R.,  66  111.  174. 

930.  Where  the  petitioner  has  not  already  entered  upon  the  land, 
the  judgment  should  be  that  it  enter  upon  and  use  the  property  upon 
payment  of  the  compensation  found.    But  where  it  has  given  the 
requisite  bond  and  has  entered,  such  an  order  is  unnecessary.    R.,  R. 
I.  &  St.  L.  R.  R.  v.  Coppinger,  66  111.  510. 

931.  REPORT  AND  JUDGMENT— a  part  of  the  record.    The  report 
of  the  damages  assessed,  and  the  judgment  of  the  court  thereon  being 
a  matter  ot  record,  will  be  taken  notice  of  by  the  supreme  court  with- 
out a  bill  of  exceptions.    Ch.  Mil.  &  St.  P.  Ry.  v.  Melville,  66  111.  329. 

932.  EFFECT  COLLATERALLY.  The  judgment  cannot  be  impeached 
collaterally,  and  it  will  be  presumed  conclusively  that  the  party  whose 
land  was  taken  has  received  by  the  judgment  and  award,  not  only  just 
compensation  for  the  land  taken,  but  for  all  such  incidental  loss, 
inconvenience  and  damages  as  might  reasonably  be  expected  to  result 


AND  EMINENT  DOMAIN.  109 

from  the  construction  and  use  of  the  way  or  crossing  in  a  legal  and 
proper  manner,  and  the  judgment  will  afford  a  complete  justification 
to  the  party  exercising  the  right  so  acquired.  C.  &  A .  R.  R.  v.  $.  & 
N.  W.  R.  R.,  67  111.  142. 

933.  Final  judgment  of  condemnation  and  payment  of  the  award, 
vest  in  the  company  exercising  the  right  of  eminent  domain,  the  abso- 
lute right  to  use  the  land  embraced  in  the  judgment  for  all  legitimate 
purposes.    Ib. 

934.  AWARD   OF  EXECUTION.    Where  the  corporation  has  not 
taken  possession  and  used  the  land  when  the  assessment  of  the  com- 
pensation and  damages  is  had,  it  is  error  to  render  judgment  award- 
ing an  execution  for  its  collection;  but  if  the  company  has  taken 
possession,  and  is  in  the  occupancy  of  the  land,  such  a  judgment  is 
proper.    St.  L.  &  S.  E.  Ry.  v.  Teeters,  68  111.  144. 

935.  PAYMENT— that  confers  the  right.    It  is  the  payment  of  the 
money  found  by  the  jury,  and  not  the  order  of  the  court,  that  confers 
the  right  of  way.    Such  order,  with  evidence  of  payment,  constitutes 
a  justification  for  taking  the  property.    Ib. 

936.  AWARD  OF  EXECUTION.    It  is  error  for  the  circuit  court,  on 
the  trial  of  an  appeal,  to  award  execution  on  the  judgment  for  the 
amount  of  the  compensation  and  damages  assessed  in  a  proceeding  to 
condemn  land  for  a  right  of  way.  S.  &  III.  S.  IS.  Ry.  v.  Turner,  68  111.  187. 

937.  MUST  BE  CONDITIONAL.    No  order  or  judgment,  of  binding 
force,  can  be  entered  in  a  proceeding  to  condemn,  so  as  to  confer  a 
present  right  to  take  or  damage  real  estate  before  payment  of  compen- 
sation found.    All  that  can  be  done,  is  to  enter  an  order  vesting  the 
right  to  take  or  damage  the  propt  rty  upon  payment  of  such  compen- 
sation.   Chicago  v.  Barbian,  80  111.  482. 

938.  No  VESTED  BIGHTS  UNDER.    The  party  seeking  condemna- 
tion acquires  no  vested  right  until  the  sum  found  is  paid  or  deposited, 
and  the  property  owner  has  no  vested  right  in  the  damages  found 
until  the  same  is  paid  or  deposited.    But  if  the  property  is  taken  or 
damaged  by  the  owner's  consent  before  compensation  is  made,  the 
owner  will  then  have  a  vested  right  in  the  compensation  when  ascer- 
tained.   Ib. 

939.  In  a  proceeding  by  a  city  to  condemn  land  for  a  street,  it  is 
error  to  render  an  unconditional  judgment  for  the  payment  of  the 
compensation  and  damages  found  by  the  jury.    The  order  should  sim- 
ply fix  the  sum  to  be  paid  before  taking  the  property,  leaving  the  city 
free  to  abandon  the  improvement,  if  it  so  chooses.    Bloomington  v. 
Miller,  84  111.  621. 

940.  COLLATERALLY — conclusive,  if  jurisdiction.   Where  commis- 
sioners have  been  duly  appointed  according  to  law  to  condemn  land 
for  a  right  of  way  and  assess  damages,  and  have  jurisdiction  of  the 
matters  acted  on  by  them,  their  action  will  be  conclusive  in  all  collat- 
eral proceedings.     Townsend  v.  C.  &  A.  R.  R., 91  111.  545. 

941.  An  order  affirming  an  assessment  of  damages  for  property 
taken  for  public  use  is  a  judgment  and  a  final  determination  of  the 
disputed  facts  and  law  of  the  case.     Until  reversed  or  otherwise  im- 
peached, it  is  conclusive  on  the  parties  as  to  the  questions  involved 
Beveridge  v.  West  Ch.  Park  Coras.,  100  111.  75. 

942.  COSTS— limiting  witnesses  fees  to  be  taxed.    The  general  cost 
act  applies  to  proceedings  to  condemn,  and  under  it  the  court  may, 
after  the  conclusion  of  the  evidence,  limit  the  number  of  the  witnesses 
whose  fees  are  to  be  taxed  against  any  party,  not  less  than  two,  as  may 
appear  to  have  been  necessary.    C.,  B.  &  Q.  R.R.v.  Bowman,  —  111.  — . 
Filed  Nov.  11,  1887. 


110  KAILROADS,  WAREHOUSES, 

943.  INTEREST  ON.    Interest  is  allowable  on  the  sum  awarded  for 
land  taken  by  a  city  to-  open  or  extend  a  street,  if  payment  is  neg- 
lected or  refused  for  an  unreasonable  time.    Chicago  v.  Wheeler,  25 
111.  478. 

944.  No  interest  accrues  upon  an  award  before  judgment,  nor  can 
a  party  causing  or  contributing  to  delay,  have  interest  until  the  entry 
of  the  final  judgment.    But  the  judgment  upon  the  award  will  bear 
interest.     Cook  v.  South  Park  Comrs.,  61  111.  115. 

945.  The  judgment  of  the  circuit  court  on  an  appeal  from  the 
assessment  of  damages  under  the  act  of  1852  will  draw  six  per  cent, 
interest,  where  possession  of  the  property  is  taken  and  retained  by  the 
applicant  for  condemnation.    III.  &  St.  L.  R.  R.  v.  McClintock,  68 
111.  296. 

946.  INTEREST — execution.    Where   the   property  has   not    been 
taken  or  damaged,  the  order  or  judgment  on  the  assessment  of  the 
jury  will  not  bear  interest,  and  no  execution  can  be  awarded  for  the 
collection  of  the  sum  assessed.    Chicago  v.  Sarbian,  80  111.  482. 

947.  INTEREST.    Until   possession    is   taken   the   compensation 
found  should  not  'bear  interest,  and  it  is  error  to  order  that  it  shall 
bear  interest.    South  Park  Comrs.  v.  Dunlevy,  91  111.  49. 

948.  Under  proceedings  to  condemn  for  public  use,  the  filing  of 
the  petition  is  not  a  taking  of  the  property,  and  it  would  be  a  trespass 
to  take  possession  before  the  damages  are  ascertained  and  paid.    The 
owner,  having  the  right  to  the  use  of  the  land  until  the  damages  are 
paid,  is  not  entitled  to  interest  on  the  value  of  the  land  from  the  com- 
mencement of  the  suit  to  the  trial.    76. 

949.  A  judgment  for  the  condemnation  of  property  taken  by  a 
city  to  widen  a  street,  and  awarding  the  amount  of  the  compensation 
to  be  paid  the  owner,  will  bear  interest  at  six  per  cent,  from  the  time 
possession  is  taken  by  the  public.    Chicago  v.  Palmer,  93  111.  125. 

950.  It  being  the  duty  of  the  park  commissioners  to  pay   for 
lands  condemned  by  them  for  a  boulevard  within  a  reasonable  time 
after  confirmation  of  the  proceedings  and  the  title  to  the  property  is 
settled,  they  will  be  held  liable  to  pay  interest  on  the  compensation 
awarded  for  the  property  condemned  after  demand  made  by  the 
owner  and  the  establishment  of  his  title  to  the  property,  although 
the  land  is  vacant  and  unoccupied,  and  possession  has  not  been  taken. 
Severidge  v.  West  Ch.  Park  Comrs.,  100  111.  75. 

951 .  VESTED  RIGHT.    The  rights  of'  the  land-owner  and  the  party 
seeking  condemnation,  being  correlative,  and  the  change  of  title 
being  dependent  upon  payment  of  the  condemnation,  money,  it  fol- 
lows that  no  interest  can  be  collected  for  failure  to  pay  the  condem- 
nation money,  for  until  payment  the  land-owner  has  no  vested  right 
therein,  and  can  maintain  no  action  therefor.    Beveridge  v.  W.  Ch. 
Park  Comrs.,  7  Bradw.  460. 

952.  INTEREST.    Where  possession  is  acquired  of  land  for  a  park 
or  other  public  purpose,  and  payment  of  the  compensation  is  with- 
held, it  is  proper  to  require  the  payment  of  interest  thereon  from  the 
time  possession  is  taken.    Phillips  v.  South  Park  Comrs.,  —  111.  — . 
Filed  Jan.  25,  1887. 

WHEN   CONDEMNATION   IS   COMPLETE. 

953.  ACTION  FOR  CONDEMNATION  MONEY.    The    party   seeking 
condemnation  acquires  no  title  in  the  land  until  possession  is  taken 
and  the  land  appropriated  to  the  use  for  which  it  was  condemned  and 
payment  of  the  damages,  and  the  land-owner  acquires  no  vested  right 
to  the  condemnation  money  until  possession  is  taken  by  the  other,  and 


AND  EMINENT  DOMAIN.  Ill 

hence  can  maintain  no  action  therefor  before  that  time.    Beveridge  v. 
W.  Ch.  Park  Comrs.,  7  Bradw.  460. 

954.  MANDAMUS — to  compel  payment.    Where  a  street  has  been 
laid  out  or  extended  and  the  damages  for  the  land  taken  assessed,  and 
the  report  thereof  accepted  and  confirmed,  and  a  warrant  issued  for 
the  collection  of  the  assessment  to  pay  for  the  property  taken,  and  such 
street  ordered  to  be  opened,  the  parties  entitled  to  the  damages  may  by 
mandamus  compel  the  city  to  collect  and  pay  over  the  same.    Higgins 
v.  Chicago,  18  111.  276. 

955.  REMEDY  TO  COLLECT— estopped.    In  an  action  of  assumpsit 
against  a  city  to  recover  the  damages  awarded  to  the  plaintiff  by  com- 
missioners for  lots  taken  for  the  extension  of  a  street,  the  city  will  be 
estopped  from  denying  the  validity  of  the  proceeding.     Chicago  v. 
Wheeler,  25  111.  478. 

956.  SAME-^cose.    The  owner  of  land  taken  by  a  city  for  a  public 
street  may  maintain  an  action  on  the  case  against  the  city  for  a  breach 
of  duty  in  neglecting  to  collect  the  assessments  of  benefits  out  of 
which  to  pay  him  the  damages  assessed  in  his  favor  for  the  land  so 
taken.    He  is  not  confined  to  the  remedy  afforded  by  mandamus. 
Clayburg  v.  Chicago,  25  111.  535. 

957.  RIGHT  TO  ABANDON  PROCEEDING— public  road.    The  only 
way  to  avoid  the  payment  of  the  damages  assessed  for  a  county  road 
is  to  vacate  the  order  directing  the  road  to  be  opened.    Sangamon  Co. 
v.  Brown,  13  111.  207. 

958.  SAME — park.    The  park  commissioners,  in  condemning  land 
for  park  purposes,  may  abandon  the  proceeding  at  any  time  before 
taking  possession  of  the  land.    The  assessment  of  damages  and  con- 
firmation by  the  court  does  not  invest  them  with  the  title  to  the  land. 
Beveridge  v.  W.  Ch.  Park  Comrs.,  1  Bradw.  460. 

959.  The  proceedings  may  be  abandoned  at  anytime  after  the 
damages  are  assessed,  and  before  payment  thereof  or  its  deposit  for 
the  owner,  where  the  property  has  remained  unmolested;  and  the  court 
will  not,  in  such  case,  compel  the  payment  of  the  compensation  by 
mandamus.    Chicago  v.  Barbian,  80  111.  482. 

960.  SAME — injunction.    Where  the  condition  of  the  order  is  not 
complied  with  in  a  reasonable  time,  by  the  payment  of  the  damages 
and  taking  possession  of  the  property,  a  court  of  equity  will  enjoin 
any  attempt  to  proceed  under  it.    Ib. 

961.  SAME— street.    There  is  no  error  in  refusing  a  village  permis- 
sion to  discontinue  a  proceeding  to  condemn  for  a  street,  as  this  may 
be  done  by  ordinance  at  any  time  after  the  assessment.    Hyde  Park 
v.  Dunham,  85  111.  569. 

962.  PAYMENT  NECESSARY  TO  COMPLETE  CONDEMNATION.    The 
damages  assessed  for  right  of  way,  on  appeal  from  an  order  laying 
out  a  public  road,  must  be  paid  before  the  road  can  be  constructed. 
Sangamon  Co.  v.  Brown,  13  111.  207. 

963.  SAME — right  to  possession.    The  damages  or  compensation 
awarded,  with  £he  costs  of  the  condemnation,  must  be  paid  before  the 
petitioner  can  take  possession  of  the  land  condemned,  or  acquire  any 
right  to  it  whatever.    C.  &  M.  R.  R.  v.  Butt,  20  111.  218. 

964.  The  constitution  (1848)  does  not  require  that  the  compensa- 
tion allowed  for  land  taken  for  right  of  way  shall  precede  the  entry 
upon  the  land.    If  the  compensation  is  held  until  called  for,  and  then 
paid  or  tendered,  the  prior  entry  will  not  be  a  trespass.    Johnson  v. 
Joliet  &  Ch.  R.  R.,  23  111.  202. 

965.  The  constitution  of  1848  does  not  require  that  compensation 
shall  be  made  before  the  land  is  taken  and  used.    It  is  sufficient  if 


112  BAILROADS,  WAREHOUSES, 

provision  is  made  for  its  payment.  Shute  v.  C.  &  M.  R.  R.,  26 
111.  436. 

966.  SAME— park.  Until  the  damages  assessed  for  land  con- 
demned for  a  public  park  are  paid,  it  cannot  be  occupied  for  the  pur- 
poses intended.  People  v.  Williams,  51  111.  63. 

067.  A  judgment  of  condemnation  of  land  for  a  public  park,  with- 
out payment  of  the  damages  assessed,  confers  no  right  to  the  land 
condemned.  It  is  only  by  payment  of  the  damages  that  the  owner 
can  be  deprived  of  the  title,  or  the  use  or  possession  of  his  land.  Cook 
v.  South  Park  Comrs.,  61  111*  115. 

968.  Under  the  "act  to  incorporate  the  Mississippi  Kailroad  com- 
pany," approved  Feb.  15,  1865,  the  entry  of  judgment  on  the  report  of 
the  commissioners,  and  payment  thereof,  was  essential  to  the  passing 
of  the  title.    P.  &  R.  I.  Ry.  v.  Rice,  75  111.  329. 

969.  Until  the  compensation  awarded  is  paid  the  petitioner  has  no 
right  to  enter  upon  the  premises.    Schreib&r  v.  C.  &  E.  R.  R.,  115  111. 
340;  8t.  L.  &  8.  E.  Ry.  v.  Teeters,  68  111.  144;  Ch.  &  Iowa  R.  R.  v. 
Hopkins,  90  111.  316. 

980.  A  condemnation  of  land  for  a  right  of  way  upon  due  proceed- 
ings, will  not  deprive  the  owner  of  his  title,  or  right  of  possession,  or 
of  alienation,  without  payment  of  the  compensation  and  damages 
awarded.    Ch.  &  lowaR.  R.  v.  Hopkins,  90  111.  316. 

981.  No  fixed  rights  acquired  by  condemnation  before  payment  of 
the  sum  awarded.    Until  this  is  done  the  petitioner  may  abandon  the 
location  and  the  owner  may  use  the  property.    Schreiber  v.  Ch.  &  E. 
R.  R.,  115  111.  340. 

982.  INJUNCTION — of  use  'before  payment.    The  jurisdiction  of  a 
court  of  equity  to  afford  preventive  relief  by  injunction  to  restrain 
commissioners  of  highways  from  appropriating  private  lands  for  a 
highway,  is  undoubted.     Willett  v.  Woodhams,  1  Bradw.  411. 

983.  If  the  compensation  awarded  is  not  paid,  the  company  con- 
demning may  be  restrained  by  injunction  from  using  the  right  of  way 
until  it  is  paid.    But  non-payment  will  not  render  the  condemnation 
invalid.    Shute  v.  Ch.  &  Mil.  R.  R.,  26  111.  436. 

984.  Injunction  to  prevent  the  opening  of  part  of  a  highway  where 
the  entire  road  cannot  be  opened.    Green  v.  Green,  34  111.  320. 

985.  An  attempt  to  open  a  road  over  improved  land  before  the 
land  owner's  damages  are  adjusted  and  paid,  may  be  restrained  by  a 
court  of  equity.    Corns.  Highways  v.  Durham,  43  111.  86. 

986.  WHEN  COMPENSATION  TO  BE  PAID— possession.    The  eminent 
domain  act  requires  the  payment  of  the  compensation  for  land  taken 
for  a  public  use,  or  a  tender  or  a  deposit  of  the  same  with  the  county 
treasurer,  before  possession  shall  be  taken.    This  is  a  condition  prece- 
dent to  the  taking  of  possession.    Phillips  v.  South  Park  Coins.,  — 
HI.  — .    Filed  Jan.  25, 1887. 

OF  THE  RIGHT  TO  POSSESSION. 

987.  EJECTMENT  BY  OWNER — demand.    Where  a  railroad  com- 
pany had  land  condemned  for  right  of  way,  but  failed  to  pay  the  dam- 
ages assessed,  and  the  owner  sued  and  recovered  judgment  for  the 
damages  upon  which  an  execution  was  issued  and  returned  no  prop- 
erty found,  the  company  having  entered  into  possession  by  the  owner's 
consent  and  built  its  road,  and  having  leased  the  same  to  another  com- 
pany, against  whom  the  owner  brought  ejectment:    Held,  that  the 
action  would  not  lie  without  notice  to  quit.    C.  B.  &  Q.  R.  R.  v.  Knox 
College,  34  111.  195. 


AND  EMINENT  DOMAIN.  113 

988.  Where  possession  is  lawfully  taken  of  property  condemned 
for  a  right  of  way,  the  mere  reversal  of  the  judgment  of  condemnation 
without  taking  any  further  steps,  will  not  render  the  possession  unlaw- 
ful and  authorize  a  recovery  by  the  land-owner  in  ejectment.    St.  L., 
A.  &  T.  H.  R.  R.  v.  Karnes,  101  111.  402. 

989.  Where  the  condemnation  is  void  for  want  of  proper  notice, 
and  the  company  has  notice  that  the  owner  claims  the  land  and 
informs  him  that  he  will  have  to  sue  if  he  gets  anything,  this  will 
obviate  the  necessity  of  any  formal  demand  before  bringing  ejectment 
by  the  owner.    C.  &  A.  R.  R.  v.  Smith,  78  111.  96. 

990.  Ejectment  will  lie  against  a  railway  corporation  by  the  owner 
for  land  used  by  it  for  the  purposes  of  its  road  where  the  land  has  not 
been  legally  condemned.    8mith  v.  Ch.,  A.  &  St.  L.  R.  R.,  67  111.  191. 

991.  Under  the  act  of  1852,  where  an  appeal  is  taken  to  the  circuit 
court,  to  entitle  the  petitioner  to  possession  pending  the  appeal,  it 
must  give  a  bond  to  the  defendant  to  secure  the  payment  of  the  final 
award  and  judgment.    If  possession  is  forcibly  taken  pending  the 
appeal  without  giving  such  bond,  it  will  be  illegal,  and  may  be  recov- 
ered back  in  an  action  of  forcible  entry  and  detainer.    Mitchell  v.  III. 
&  St.  L.  R.  R.  &  Coal  Co.,  68  111.  286. 

992.  EFFECT  OF  GIVING  POSSESSION.    The  general  railroad  law 
authorizing  the  acquisition  of  lands  for  right  of  way,  arid  giving  the 
right  to  take  possession  and  use  such  lands,  does  not  mean  that  if  an 
owner  permits  a  railroad  company  to  enter  pending  litigation  to  ascer- 
tain the  damages,  or  without  litigation,  he  will  lose  not  only  his  dam- 
ages, but  also  the  land.    The  owner  will  lose  none  of  his  rights  by  per- 
mitting the  company  to  take  possession  without  grant  or  condemna- 
tion.   J.  C.  R.  R.  v.  Ind.  &  III.  Central  Ry.,  85  111.  211. 

993.  LICENSE  TO  ENTER — evidence  of.    The  mere  fact  that  a  rail- 
road company  has  long  been  in  possession  of  land  occupied  as  a  right 
of  way,  in  the  absence  of  all  other  proof,  does  not  raise  a  presumption 
that  the  owner  had  given  a  license  to  enter  and  construct  the  road. 
T.,  P.  &  W.  Ry.  v.  Darst,  61  111.  231. 

994.  SALE  OF  RIGHT  OF  WAY— possession  as  evidence  of.    The  mere . 
fact  that  a  railway  company  has  entered  upon  land  and  constructed  its 
road  over  the  same  and  occupied  it  about  thirteen  years,  does  not  raise 
a  presumption  that  the  owner  had  sold  the  right  of  way  to  the  com- 
pany.   Ib. 

995.  Where  a  railway  corporation  has  taken  possession  of  land 
without  the  owner's  consent  and  without  condemnation^  and  wrong- 
fully holds  the  same,  the  law  affords  the  owner  two  remedies — an 
action  of  ejectment  and  an  action  to  recover  the  value  of  the  land. 
Smith  v.  Ch.,  Alton  &  St.  L.  R.  R.,  67  111.  191. 

996.  MANDAMUS — to  compel  condemnation.    After  a  railway  com- 
pany has  obtained  the  possession  of  land  for  its  right  of  way,  and  is 
in  the  use  of  it,  mandamus  will  not  lie  to  compel  it  to  institute  pro- 
ceedings to  condemn  the  land.    Ib. 

997.  EJECTMENT — breach  of  condition.    Where  the  owner  of  land 
gave  a  railway  company  a  written  agreement  for  a  conveyance  of  a 
right  of  way  over  the  same,  which  contained  an  irrevocable  license  to 
enter  and  occupy  a  part  thereof  as  a  right  of  way;  held,  that  the  fail- 
ure of  the  company  to  perform  conditions  subsequent,  such  as  fencing, 
afforded  no  grounds  for  revoking  the  license  under  which  the  com- 
pany entered  and  made  its  road,  and  hence  the  owner  could  not  recover 
possession  of  the  right  of  way  in  ejectment  for  a  breach  of  such  con- 
ditions.   Morris  v.  /.,  B.  &  W.  Ry.,  76  111.  522. 

998.  GRANT  OF  RIGHT  OF  WAY — only  by  deed.    Where  a  railway 

—9 


114  EAILEOADS,  WAEEHOUSES, 

company,  in  conveying  a  tract  of  land,  reserved  a  strip  on  each  side 
of  its  track,  and  another  strip  crossing  the  first,  for  railroad  purposes, 
upon  which  another  company,  some  sixteen  years  afterwards,  laid  the 
track  of  its  road  by  permission:  Held,  that  the  reservation  in  the 
deed  passed  no  title,  legal  or  equitable,  to  the  latter  company  as  to  any 
of  the  strip  not  actually  occupied  by  it  /.  C.  R.  R.  v.  Ind.  &  III. 
Central  Ry.,  85  111.  211. 

999.  POSSESSION— extent  of.    Where  a  railway  company  constructs 
its  track  over  the  land  of  another,  and  erects  buildings  thereon  without 
any  written  evidence  of  title,  and  does  not  inclose  the  same,  its  pos 
session  will  be  limited  to  the  ground  actually  occupied.    Ib. 

1000.  EIGHT  OF  WAY — by  dedication.    The  statute  providing  that 
streets,  &c.,  designated  on  a  town  plat,  when  properly  certified,  &c., 
shall  operate  as  a  conveyance  in  fee  to  the  public,  does  not  apply  in 
favor  of  individuals  or  private  corporations.    So,  the  reservation  in  a 
deed  of  a  strip  of  land  for  railroad  purposes,  according  to  a  diagram 
which  shows  the  name  of  the  railway  company,  will  not  operate  as  a 
conveyance  of  the  strip  to  the  company,  or  as  a  dedication.    Ib. 

1001.  EJECTMENT — by  subsequent  grantee.    The  purchaser  of  land 
over  which  a  railroad  is   constructed  and  operated  without  having 
acquired  the  right  of  way,  may,  upon  receiving  a  conveyance  of  the 
legal  title,  maintain  ejectment  against  the  company  for  the  land  so 
tortiously  taken  and  occupied.    Ch.  &  Iowa  R.  R.  v.  Hopkins.  90  111. 
316. 

1002.  TELEGRAPH   COMPANY — of  the  rights  acquired.    A  tele- 
graph company,  by  the  condemnation  of  land  for  its  use,  does  not 
acquire  the  fee  to  the  land  or  the  right  to  use  it  for  any  other  purpose 
than  to  erect  poles  and  suspend  wires  on  them,  and  maintain  and 
repair  the  same,  and  use  the  structure  for  telegraph  purposes.    This 
includes  the  right  at  all  times  to  enter  upon  the  strip  when  necessary 
to  construct  or  repair  the  line,  doing  as  little  damage  as  possible,  but 
not  the  right  to  cultivate  the  ground.    The  only  exclusive  right  of 
occupancy  is  the  ground  occupied  by  the  poles.    Lockie  v.  Mut.  Union 
Tel.  Co.,  103  111.  401. 

1003.  TRESPASS — against   telegraph   company.    Trespass    quare 
clausum  freyit  lies  against  a  telegraph  company  by  the  owner  of  land 
for  entering  upon  a  highway  over  his  land  and  erecting  poles  thereon 
without  his  assent.    Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507. 

1004.  EIGHT  TO  TAKE  POSSESSION.    A  railway  company  has  no 
right  to  the  possession  of  land  for  its  right  of  way  until  the  damages 
for  the  taking  of  the  same  have  been  assessed  and  paid,  and  if  it  takes 
possession  before  that  is  done,  without  the  owner's  consent,  it  is  a  tres- 
passer, and  the  owner  may  bring  ejectment  or  trespass,  or  both,  and 
recover  his  property,  and  such  damages  as  he  may  have  sustained  by 
the  unlawful  act.    Ch.,  St.  L.  &  Western  It.  R.  T.  Gates,  —  111.  — . 
Filed  March  23, 1887. 

1005.  EFFECT  OF  JUDGMENT— passing  title.    A  judgment  of  con- 
demnation of  land  for  the  widening  of  a  street  under  the  act  of  1887 
relating  to  the  city  of  Chicago,  as  effectually  concludes  the  former  land 
owner  from  asserting  title  to  the  land  taken,  as  a  sale  on  execution  or 
a  recovery  in  ejectment.    Morris  v.  Chicago,  11  111.  650. 

1006.  EEVERSION — street.    Where  a  deed  of  land  for  a  street  pro- 
vides that  where  the  same  shall  cease  to  be  used  as  a  street,  or  the 
street  shall  be  abandoned  or  vacated,  the  land  shall  revert  to  the 
grantor,  or  his  heirs  or  assigns,  on  vacation  of  the  street,  the  land  by 
virtue  of  such  clause  will   revert,  and  also  upon  general  principles, 
without  such  reservation.    Helm  v.  Webster,  85  111.  116. 

1007.  PASSING  TITLE.    The  final  judgment  of  the  circuit  court 


AND  EMINENT  DOMAIN.  115 

approving  the  report  of  the  commissioners  appointed  under  the  gen- 
eral law  of  1859,  relating  to  plank  roads,  etc.,  passes  the  title  to  the 
land  condemned  to  the  corporation.  Skinner  v.  Lake  View  Avenue 
Co.,  57  111.  151. 

1008.  DIVESTITURE  OF  TITLE — street.    Where  condemnation  of 
land  is  effected  for  a  street,  the  damages  assessed  and  accepted  by  the 
owners,  who  thereby  give  their  assent  to  the  proceedings,  and  possession 
is  taken,  the  title  is  thereby  divested  from  such  owners,  notwithstand- 
ing errors  in  the  proceedings.    Rees  v.  Chicago,  38  111,  322. 

1009.  The  proprietor  of  land  over  which  a  railroad  passes,  after 
condemnation,  has  no  right  to  build  a  fence  on  the  right  of  way,  or 
make  cattle  guards  along  the  road.    A.  &  8.  R.  R.  v.  Baugh,  14  111.  211. 

1010.  COMPENSATION — to  whom  paid—persons  entitled — attach- 
ing creditor.    Where  a  creditor  of  the  land-owner  has  attached  the 
land  and  obtained  a  judgment,  payment  of  the  money  awarded  in  a 
proceeding  to  condemn,  to  such  creditor,  not  exceeding  his  judgment, 
will  be  a  payment  to  the  party  interested,  in  accordance  with  the  stat- 
ute.   C.,  B.  &  Q.  R.  R.  v.  Chamberlain,  84  111.  333. 

1011.  KES  ADJUDICATA  — judgment.    An  adjudication  upon  an 
appeal  from  an  award  of  commissioners,  that  the  condemnation  money 
belonged  to  the  party  appealing,  is  conclusive  upon  all  the  parties  to 
the  original  proceeding,  although  they  had  no  notice  of  the  appeal.  /&. 

1012.  NAMING  THE  PARTIES  TO  BE  PAID — subsequent  adjudica- 
tion.   In  a  proceeding  to  condemn  land  under  the  act  of  1852,  owned 
by  several  persons  as  tenants  in  common,  where  there  are  adverse  and 
conflicting  claims  by  tax  titles,  attachment  and  judgment  liens,  it  is 
sufficient  for  the  commissioners,  under  §  6,  to  state  in  their  report 
separately,  the  compensation  to  be  paid  for  each  lot  of  land,  leaving  it 
for  the  court  to  determine  in  regard  to  the  rights  of  the  respective 
claimants  to  the  money  awarded.    Ib. 

1013.  FORECLOSURE.    Where  mortgaged  property  is  condemned 
and  appropriated  to  public  use,  and  the  compensation  awarded  to  the 
owner  or  mortgagor  exceeds  the  sum  due  on  the  mortgage  and  is  not 
paid,  it  is  not  proper  on  bill  to  foreclose,  to  order  a  sale  of  the  prem- 
ises.   The  sum  found  due  should  be  ordered  paid  out  of  the  condem- 
nation money.    Colehour  v.  State  Savings  Institution,  90  111.  152. 

1014.  A  railway  company  seeking  the  condemnation  of  a  part  of  a 
lot  for  the  purposes  of  its  road,  has  no  cause  to  complain  of  an  order 
of  court  fixing  the  compensation  to  be  paid,  and  directing  the  money 
to  be  paid  to  the  treasurer  of  the  county  for  the  benefit  of  the  owners 
of  the  property  affected  or  those  interested  in  it.    Such  an  order  does 
not  determine  who  is  entitled  to  the  compensation  awarded.    Ch.  & 
W.  Ind.  R.  R.  v.  Prussing,  96  111.  203. 

1015.  MORTGAGED  PROPERTY.    Where  the  property  of  a  mort- 
gagor is  condemned  for  public  use  and  the  compensation  to  be  paid 
is  assessed,  the  holder  of  the  mortgaged  debt  will  be  entitled  to  be  first 
paid  out  of  it  the  amount  due  him,  and  the  mortgagor  the  balance. 
South  Park  Corns,  v.  Todd,  112  111.  379. 

1016.  OWNER  UNKNOWN  OR  NON-RESIDENT.    If  the  owner  is  not 
known  or  is  a  non-resident,  the  money  should  be  paid  into  the  county 
treasury  for  his  use.    If  paid  to  one  not  entitled  to  it,  the  court  will 
compel  its  payment  again  to  the  rightful  claimant.    The  commission- 
ers awarding  the  compensation  have  no  authority  to  determine  to 
whom  the  money  shall  be  paid.    Ib. 

1017.  LANDLORD  AND  TENANT.    A  lessee  is  entitled  to  compensa- 
tion for  his  unexpired  term  before  he  can  be  deprived  of  the  use  of  his 
property.    But  if  his  term  expires  before  the  final  hearing,  he  will 


116  EAILEOADS,  WAREHOUSES, 

have  no  interest  to  be  taken,  and  cannot  have  compensation  for 
improvements.    Schreiber  v.  Ch.  &  E.  R.  R,,  115  111.  340. 

1018.  After  service,  a  tenant,  cannot  by  taking  a  new  lease,  not 
before  secured  by  contract,  acquire  any  new  rights  to  compensa- 
tion.   Ib. 

1019.  Under  the  statute,  the  compensation  awarded,  is  required  to 
be  paid,  either  to  the  person  entitled  to  it,  or  to  the  county  treasurer. 
It  is  error  to  direct  its  payment  into  court  to  await  further  proceed- 
ings to  determine  who  is  entitled  to  it.    McCormick  v.  W.  Ch.  Park 
Corns.,  118  111.  655. 

1020.  The  compensation,  for  which  the  public  is  liable  in  condemn- 
ing; land,  must  go  to  those  who  are  entitled  to  the  property  itself,  in 
proportion  to  their  several  interests.    Chicago  v.  Garrity,  1  Bradw.  474. 

1021.  LANDLORD  AND  TENANT.    As  between  landlord  and  tenant, 
the  condemnation  of  land  does  not  operate  as  an  extinguishment  in 
whole  or  in  part  of  the  lease,  but  the  tenant  remains  liable  to  his  land- 
lord for  the  entire  rent.    Ib. 

1022.  APPORTIONMENT.    A  tenant  is  entitled  to  receive  from  the 
public  full  compensation  for  so  much  of  his  leasehold  estate  as  is 
appropriated  to  the  public  use.    The  landlord's  compensation  should 
be  diminished  by  reason  of  the  existence  of  the  lease-hold  estate  only 
by  such  an  amount  as  the  evidence  shows  that  the  actual  rental  value 
of  the  premises  exqeeds  the  rent  reserved.    Ib. 

1023.  The  damages  awarded  the  landlord  and  tenant  respectively 
are  the  results  of  independent  assessments;  and  because  the  aggregate 
assessment  may  exceed  the  entire  value  of  the  property  taken,  the 
public  power  seeking  the  condemnation,  has  such  an  interest  therein, 
that  it  may  insist  upon  a  proper  apportionment  of  damages  between 
landlord  and  tenant.    Ib. 

1024.  RIGHTS  UNDER  JUDGMENT.    'Until  compensation  is  paid, 
there  is  no  right  of  entry,  and  the  company  may  abandon  the  location 
and  adopt  another.    Until  the  selection  by  the  company  becomes 
binding,  the  owner  may  exercise  all  the  rights  of  ownership  not 
materially  interfering  with  the  condemnation  proceeding,  and  so  may 
remove  machinery  and  buildings  from  the  premises.    Schrieber  v.  Ch. 
&E.R.R.,  115111.340. 

1025.  POSSESSION  BEFORE  CONDEMNATION — trespass.     Where  a 
railroad  is  located  and  operated  over  land  of  an  estate  without  con- 
demnation or  otherwise  acquiring  the  right  of  way,  the  taking  and 
retaining  of  the  land  is  a  continuing  trespass,  and  on  judicial  sale  the 
whole  land,  including  the  so-called  right  of  way,  passes  to  the  pur- 
chaser, and  he  will  be  entitled  to  compensation  for  the  land  taken  and 
damages  for  any  injury  to  the  part  not  taken,  on  a  proceeding  to  con- 
demn.   Ch.  &  Iowa  R.  R.  v.  Hopkins,  90  111.  316. 

JUDGMENT. 

1026.  AWARD;  CONSTRUED.     In  a  condemnation  proceeding,  the 
commissioners,  after  assessing  the  value  of  the  estate  and  the  improve- 
ments thereon,  further  awarded  that  if  the  improvement  should  be 
retained   by   the   owner  for  three  months,  there  was  no   damage 
from  the  interruption  of  his  business,  and  if  he  should  retain  the 
possession  for  two  months,  then  the  damages  to  the  business  were  fixed 
at  §1,600,  and  if  he  should  retain  the  possession  one  month,  at  $3,200: 
Held,  that  it  rested  with  the  railway  company  when  to  take  possession, 
and  that  if  it  took  possession  within  three  months,  it  would  have  to 
pay  the  damages  named,  but  that  the  owner  could  not  force  it  to  take 
possession  at  any  time  he  might  select,  and  then  recover  the  damages 


AND  EMINENT  DOMAIN.  117 

provided  by  the  award  to  be  paid  upon  his  having  to  give  possession 
at  that  time,  and  if  the  company  did  not  take  possession  within  the 
three  months  it  was  not  liable  for  anv  damages.  Glennon  v.  Ch  M. 
&  St.  P.  Ry.,  79  111.  501. 

1027.  ARBITRATION — enforcement  of  award.    A  submission  of  all 
matters  in  dispute  with  regard  to  a  right  of  way  claimed  by  a  railway 
company  over  a  party's  land  is  sufficiently  broad  to  embrace  an  award 
as  to  the  building  of  fences  and  crossings  as  well  as  the  payment  of  a 
sum  of  money.    No  judgment  for  a  sum  of  money  can  be  rendered  on 
such  an  award,  but  it  may  be  enforced  under  §  8  of  the  statute  re- 
lating to  arbitration  and  award.    Kankakee  &  S.  W.  R.  R.  v.  Alfred, 
8  Bradw,  511. 

1028.  BINDING  FORCE — collaterally.  The  record  of  a  condemnation 
proceeding  where  the  jurisdiction  appears,  is  competent  evidence  and 
cannot  be  impeached  collaterally  for  errors  or  irregularities.    Q.  &  Ch. 
Union  R.  R.  v.  Pound,  22  111.  399. 

1029.  In  trespass  for  removing  a  fence  to  open  a  road,  the  proceed- 
ings to  establish  the  road  cannot  be  attacked  collaterally  for  mere 
errors  not  going  to  the  jurisdiction,  and  parol  evidence  to  show  the 
jury  adopted  an  improper  basis  in  the  assessment  of  damages,  is  inad- 
missible.   Hankins  v.  Calloway,  88  111.  155. 

1030.  PRESUMPTION   IN  FAVOR   OF.    Where  the  court  acquires 
jurisdiction  under  the  act  of  1852,  by  the  proper  notice,  and  the  filing 
of  the  petition,  its  subsequent  action  in  appointing  commissioners 
will  be  presumed  to  be  correct,  and  that  they  had  the  requisite  quali- 
fications.   C.,B.&Q.  R.  R.  v.  Chamberlain,  84  111.  333. 

1031.  COLLATERALLY.    The  report  of  the  commissioners  of  the 
damages  assessed,  under  the  act  of  1852,  became  final  and  conclusive 
upon  the  parties  in  all  collateral   proceedings  without   it  appearing 
that  notice  had  been  given  of  the  filing  of  the  same  with  the  clerk. 
It  will  be  presumed  notice  was  given.    Ib. 

1032.  ACQUIESCENCE  IN.    Where  the  parties  acquiesce  in  and 
ratify  the  award,  it  will  be  conclusive  in  respect  to  the  interest 
claimed  without  regard  to  the  giving  of  a  notice.    Ib. 

1033.  FRAUDULENT — void— injunction.     Where    a  railway  com- 
pany proceeds  to  condemn  for  its  own  use,  the  road  and  track  of 
another  de  facto  railroad  company,  concealing  the  object  and  purpose, 
and  giving  no  notice,  and  the  whole  proceeding  shows  it  to  be  the 
carrying  out  of  a  scheme  for  the  fraudulent  and  inequitable  purpose 
of  getting  possession  of  the  latter  company's  right  of  way  and  road, 
without  making  compensation,  a  court  of  equity  will  restrain  the 
taking  of  possession  under  such  fraudulent  proceeding.    Cin.,  La+'.  & 
Ch.  R.  R.  v.  Danville  &  7 in.  Ry.,  75  111.  113. 

1034.  COLLATERALLY— error  on  face  of  proceedings.    Where  the 
verdict  of  a  jury,  in  a  proceeding  to  condemn  land  for  a  public  road, 
shows  on  its  face  that  benefits  were  allowed  against  the  value  of  the 
land  taken,  it  will  render  the  order  establishing  the  road  absolutely 
void.  Such  defect  goes  to  the  jurisdiction  of  the  commissioners.  Hys- 
lop  v.  Finch,  99  111.  171. 

1035.  COSTS.    Expenses  attending  an  assessment  of  damages  for 
right  of  way  include  costs,  and  they  stand  the  same  as  the  damages, 
and  must  be  paid  before  possession  can  be  taken  of  the  land.    Ch.  & 
Mil.  R.  R.  v.  Bull,  20  111.  218. 

1036.  CROSS  PETITION — new  parties  by — what  it  may 
show.  §  11.  Any  person  not  made  a  party  may  become  such 
by  filing  his  cross  petition,  setting  forth  that  he  is  the  owner 


118  BAILROADS,  WAREHOUSES, 

or  has  an  interest  in  property,  and  which  will  be  taken  or 
damaged  by  the  proposed  work;  and  the  rights  of  such  last 
named  petitioner  shall  thereupon  be  fully  considered  and  de- 
termined. [B.  S.  1887,  p.  647,  §  11;  S.  &  C.,  p.  1051,  §  11; 
Cothran,  p.  649.  See  notes  to  §  9,  anti,  §§  760-765.] 

1037.  APPEALS — when  lies  and  practice  on.     §12.  In  all 
cases,  in  either  the  circuit  or  county  court,  or  before  a  circuit 
or  county  judge,  an  appeal  shall  lie  to  the   supreme  court. 
[B.  S.  1887,  p.  647,  §  12;  S.  &  C.,  p.  1051,  §  12;  Cothran,  p.  650, 
§12.] 

1038.  AS-TO  PUBLIC  ROAD — on  question  of  damages.    A  person 
whose  land  has  been  taken  for  a  road  has  the  right  to  be  heard  upon 
the  question  of  damages  upon  an  appeal  to  the  supervisors,  and  it  is 
error  to  dismiss  his  appeal,  and  the  mode  of  appeal  is  not  changed  by 
the  fact  that  the  proposed  road  is  upon  a  couoty  line.    Deitrick  v. 
Highway  Comrs.,  6  Bradw.  70. 

1039.  SAME— joinder  in  by  tenants  in  common.    Tenants  in  com- 
mon may  join  in  an  appeal,  but  parties  having  different  interests  can- 
not.   They  must  prosecute  separate  appeals.    Sangamon  Co.  v.  Brown. 
13  111.  207. 

1040.  SAME — where  right  exists.    No  appeal  is  given  to  the  owner 
of  land  from  an  order  of  the  county  court  laying  out  a  public  road 
until  the  court  orders  the  road  to  be  opened,  nor  can  land  be  appro- 
priated for  a  road  until  such  order  has  been  made.    Ib. 

1041.  SAME — who  has  the  affirmative.     The  land-owner  on  the 
trial  of  an  appeal,  takes  the  affirmative  and  must  prove  the  title  to  the 
land  and  show  that  he  will  sustain  damage  by  the  construction  of  the 
road.    The  county  is  defendant.    Ib. 

1042.  SAME — question  involved.     If  the  county  court  had  juris- 
diction and  proceeded  regularly,  the  only  question  for  review  is  the 
amount  of  the  damages.    The  propriety  of  the  road  is  not  involved. 
Ib. 

1043.  SAME — error  in  proceeding.    The  circuit  court  may  inquire 
into  the  regularity  and  validity  of  the  proceedings,  and  if  the  county 
court  has  proceeded  illegally  or  without  lawful  authority,  the  circuit 
court  should  reverse  the  order  and  leave  the  county  court  to  proceed 
anew.    Ib. 

1044.  SAME — costs.    The  county  is  liable  for  costs  where  an  appeal 
is  successfully  prosecuted,  and  a  material  increase  in  the  damages  as- 
sessed is  a  successful  prosecution.    Ib. 

1045.  SAME — refusal  to  lay  road.    An  appeal  does  not  lie  from  a 
decision  of  the  county  court  refusing  to  open  and  construct  a  road.  Ib. 

1046.  As  TO  PLANK  ROAD,  &c.    The  order  of  approval  of  the  report 
of  the  commissioners  appointed  under  the  general  law  of  1859,  relating 
to  plank,  gravel  and  macadami/ed  roads,  is  a  final  judgment   from 
which  an  appeal  lies  to  this  court,  notwithstanding  the  act  providing 
for  the  condemnation  is  silent  as  to  an  appeal  or  writ  of  error.    Skin- 
ner v.  Lake  View  Avenue  Co.,  57  111.  151. 

1047.  SAME—; -freehold  involved.     Where,  under  the  statute,  the  pe- 
tition was  presented  to  the  court,  commissioners  were  appointed  who 
made  their  report,  and  the  clerk  recorded  the  orders  and  the  court  con- 
firmed the  report.    Held,  that  this  constituted  a  condemnation  of  the 
land  by  which  the  title  passed  to  the  corporation,  and  it  relating  to  a 
free  hold,  an  appeal  laid  to  the  supreme  court.    76. 


AND  EMINENT  DOMAIN.  119 

1048.  RIGHT  OF  WAY— law  of  1845.    Where  the  charter  of  a  rail- 
way company  provides  for  the  condemnation  for  right  of  way  under 
the  act  of  March  3,  1845,  an  appeal  will  lie  from  the  assessment  of  the 
commissioners.    Austin  v.  Belleville  &  Illinoistown  R.  R.,  19  111.  310. 

1049.  SAME— right  to  dismiss  proceeding  on.    On  the  removal  of 
a  proceeding  to  condemn  land  for  right  of  way,  by  appeal  or  certiorari 
to  the  circuit  court,  the  company  seeking  to  condemn  has  the  right  to 
dismiss  the  proceeding,  and  it  is  error  to  refuse  leave  to  do  so.    Joliet 
&  Ch.  R.  R.  v.  Barrows,  24  111.  562. 

1050.  SAME— by  certiorari  under  statute.     Where  an  appeal  is 
given  from  an  assessment  for  a  right  of  way,  and  the  land-owner  has 
not  had  notice  of  the  proceeding  in  time  to  take  an  appeal,  he  may 
have  a  trial  de  novo  by  certiorari  under  the  statute.    lb. 

1051.  SAME — width  of  road  fixed  by  report.     Upon  an  appeal 
from  the  assessment  of  the  commissioners  under  the  charter  of  the 
Peoria  &  Rock  Island  Railway  company,  to  the  circuit  court,  the 
report  of  the  commissioners  is  the  foundation  of  the  appeal,  and  the 
width  of  land  therein  described,  must  control.    P.  &  R.  I.  Ry.  v.  Bry- 
ant, 57  111.  473. 

1052.  COSTS  om—law  of  1852.    On  appeal  from  the  assessment  of 
damages  under  the  act  of  1852,  since  the  adoption  of  the  new  constitu- 
tion, the  land-owner  should  not  be  compelled  to  pay  costs,  if  the  assess- 
ment is  confirmed  or  not  increased.    People  v.  McRoberts,  62  111.  38. 

1053.  QUESTIONS  INVOLVED — title  to  land.    The  circuit  court  on 
appeal  from  the  award  of  the  commissioners  can  consider  only  the 
questions  decided  and  reported  by  them.    The  question  of  title  is  not 
involved.    P.,  P.&J.R.R  v.  Laurie,  63  111.  264. 

1054.  CONSTITUTIONAL  RIGHT.    An  appeal  lies  from  the  judg- 
ment of  the  circuit  court  condemning  land  for  right  of  way  under  the 
act  of  1852.    This  is  a  constitutional  right  conferred  by  that  clause  of 
the  constitution  defining  the  jurisdiction  of  the  supreme  court.    St. 
L.  &  S.  E.  Ry.  v.  Lux,  63  111.  523. 

1055.  SERVICE  OF  NOTICE  OF.    In  a  proceeding  to  condemn  land 
under  the  act  of  1852,  for  the  right  of  way  of  a  railroad,  notice  of  an 
appeal  by  the  land-owner  from  the  award  of  the  commissioners  to  the 
circuit  court,  served  upon  the  attorney  of  the  railway  company,  is  a 
nullity.    Hartman  v.  Belleville  &  O'Fallon  R.  R.,  64  111.  24. 

1056.  WIDENING  STREET.    An  appeal  or  writ  of  error  lies  to  the 
final  judgment  of  the  circuit  court  in  a  proceeding  to  condemn  prop- 
erty by  a  municipal  corporation  for  the  purpose  of  widening  a  street. 
Hyde  Park  v.  Dunham,  85  111.  569. 

1057.  QUESTIONS  INVOLVED  IN.    An  order  of  the  county  court 
made  in  a  proceeding  to  condemn  land  for  a  right  of  way  after  the 
allowance  and  perfecting  of  an  appeal  from  the  final  judgment  to  the 
supreme  court,   authorizing  the  petitioner  to  enter  on  the  premises 
pending  the  appeal,  will  not  be  involved  in  the  appeal.    L.  S.  &  M.  8. 
R.  R.y.  Ch.  &  W.  Ind.  R.  R.,  100  111.  21. 

1058.  An '  appeal  will  lie  directly  from  the  county  court  to  the 
supreme  court  in  a  proceeding  to  condemn  land  for  right  of  way  for 
a  railroad  under  the  eminent  domain  act.    Kankakee  &  Seneca  R.  R. 
v.  Straut,  101  111.  653. 

1059.  §  12  of  the  eminent  domain  act  expressly  gives  an  appeal 
directly  to   the  supreme  court  from  the  judgment  of  condemnation, 
and  there  is  nothing  in  the  practice  act  that  takes  away  this  right. 
P.  &  P.  U.  Ry.  v.  P.  &  F.  Ry.,  105  111.  110. 

1060.  SEPARATE  APPEALS.    Each  separate  owner  is  entitled  to  a 
separate  appeal.    Johnson  v.  F.  &  M.  R.  Ry.,  116  111.  521. 


120  BAILKOADS,  WAREHOUSES, 

1061.  FINAL  ORDER— dismissal  of  cross  claim.    Where  a  cross 
petition  filed  in  a  proceeding  to  condemn  under  the  eminent  domain 
act,  which  brings  before  the  court  and  states  a  claim  of  ownership  or 
interest  not  stated  in  the  original  petition,  is  dismissed,  the  order  of  dis- 
missal is  final  as  to  the  rights  claimed  under  it,  and  an  appeal  lies 
from  the  order  of  dismissal.    Johnson  v.  F.  &  M.  R.  Ry.,  116  111.  521. 

1062.  SAME — disposition  of  the  compensation.    After  judgment 
of  condemnation  awarding  the  payment  of  the  compensation  assessed 
to  a  party  as  the  owner  of  the  property,  a  subsequent  order  directing 
the  payment  of  the  condemnation  money  into  court  to  await  its 
further  order  as  to  whom  to  be  paid,  is  such  a  final  order  as  may  be 
reviewed  by  appeal  or  writ  of  error.    McCormick  v.   W.  Ch.  Park 
Comrs.,  118  111.  655. 

1063.  EXECUTOR— HEIRS.    Where  the  land-owner  dies  pending  a 
proceeding  to  condemn  his  executor  cannot  appeal  from  the  judgment, 
unless  he  has  some  interest  in  the  land  by  the  will  of  the  deceased 
owner.    If  he  has  no  such  interest  the  heirs  alone  can  appeal.    Bower 
V.  Q.  &  M.  R.  R.,  92  111.  223. 

1064.  RE-TAXATION  OF  COSTS.    Under  a  former  statute,  review  of 
taxation  of  costs  by  county  court  in  condemnation  case  could  be  ob- 
tained in  circuit  court  by  appeal  thereto,  and  motion  for  re-taxation. 
Peoria  &  B.  V.  R.  R.  v.  Bryant,  15  111.  438. 

1065.  §  9  of  act  of  1852,  requiring  the  execution  of  an  appeal  bond 
on  taking  an  appeal  from  the  award  to  the  circuit  court,  and  §  12, 
which  permits  the  land  to  be  entered  upon  pending  the  appeal,  are 
repealed  by  the  new  constitution.    People  v.  McRoberts,  62  111.  38. 

1066.  ABANDONMENT  OF  CLAIM— failure  to  prosecute  after  re- 
versal.   After  reversal  of  a  judgment  of  condemnation,  if  the  land- 
owner deems  the  compensation  awarded  him  insufficient,  he  should, 
within  two  years  after  the  reversal,  have  the  cause  remanded  and  re- 
docketed,  giving  the  proper  notice,  and  have  another  trial.     If  he  fails 
to  do  so  and  retains  the  sum  paid  him  he  will  be  regarded  as  having 
abandoned  any  claim  for  further  compensation.    St.  L.,  A.  &  T.  H.  R. 
R.  v.  Karnes,  101  111.  402. 

1067.  BOND  TO  GIVE  POSSESSION  PENDING  APPEAL — Con- 
ditions and  approval.     §  13.     In  cases  in  which  compensa- 
tion shall  be  ascertained  as  aforesaid,  if  the  party  in  whose 
favor  the  same  is  ascertained  shall  appeal  such  proceeding, 
the  petitioner  shall,  notwithstanding,  have  the  right  to  enter 
.upon  the  use  of  the  property  upon  entering  into  bond,  with 
sufficient  surety,  payable  to  the  party  interested  in  such  com- 
pensation, conditioned  for  the  payment  of  such  compensation 
..as  may  be  finally  adjudged  in  the  case,  and  in  case  of  appeal 
by  petitioner,  petitioner  shall  enter  into  like  bond  with  ap- 
proved surety.     Said  bonds  shall  be  approved  by  the  judge 
before  whom  such  proceeding  shall  be  had,  and  executed  and 
filed  within  such  time  as  shall  be  fixed  by  said  judge.    [  R.  S. 
1887,  p.  647,  §  13 ;  8.  &  0.,  p.  1052,  §  13 ;  Cothran,  p.  650,  §  13.  ] 

1068.  RIGHT  TO  POSSESSION— pending  appeal.    Under  the  act  of 
1852,  when  an  appeal  is  taken  from  the  award,  if  the  party  seeking  the 
condemnation  desires  to  enter  upon  and  occupy  the  property  pending 
the  appeal,  bond  must  be  given  to  the  person  whose  land  is  sought,  to 
secure  the  payment  of  the  judgment  that  may  be  rendered.     Posses- 
sion taken  forcibly  pending  an  appeal  without  giving  such  bond,  is 


AND  EMINENT  DOMAIN.  121 

illegal,  and  may  be  recovered  back  by  forcible  entry  and  detainer. 
Mitchell  y.Ill.  &  St.  L.  K.  R.  &  Coal  Co.,  68  111.  286. 

1069.  COMPENSATION — payment  to  county  treasurer,  &c. 
§  14.     Payment  of  compensation  adjudged  may,  in  all  cases, 
be  made  to  the  county  treasurer,  who  shall,  on  demand,  pay 
the  same  to  the  party  thereto  entitled,  taking  receipt  there- 
for, or  payment  may  be  made  to  the  party  entitled,  his,  her  or 
their  conservator  or  guardian.     [E.  S.  1887,  p.  648,  §  14;  S. 
&  C.,  p.  1052,  §14,  Cothran,  p.  650,  §  14. 

1070.  EECOBD — of  verdict  and  judgment.     §  15.     The 
court  or  judge  shall  cause  the  verdict  of  the  jury  and  the 
judgment  of  the  court  to  be  entered  upon  the  records  of  said 
court.     [R-  S.  1887,  p.   648,   §  15;  S.  &  C-,  p.  1052,  §  15; 
Cothran,  p.  650,  §  15.] 

1071.  REPEAL.    §16.    All  laws  and  parts  of  laws  in  con- 
flict with  the  provisions  of  this  act  are  hereby  repealed: 
Provided,  that  this  act  shall  not  be  construed  to  repeal  any 
law   or  part  of  law  upon  the  same  subject  passed  by  this 
general  assembly;  but  in  all  such  cases   this  act  shall  be 
construed  as  providing  a  cumulative  remedy.     [E.  S.  1887, 
p.  648,  §  16;  S.  &  0.,  p.  1053,  §16;  Cothran,  p.  650,  §  16.] 

BENEVOLENT  INSTITUTIONS. 

An  act  for  the  further  protection  of  the  state  institutions.    Approved  and  in'force 
March  9,  1867. 

1072.  LANDS  OF  STATE  INSTITUTIONS  NOT  TAKEN.    §  1. 
Be  it  enacted  by  the  People  of  the  State  of  Illinois,  repre- 
sented in  the  general  assembly,  That  no  part  of  any  land 
heretofore  or  hereafter  conveyed  to  the  state  of  Illinois,  for 
the  use  of  any  benevolent  institutions  of  the  state  (or  to  any 
such  institutions),  shall  be  entered  upon,  appropriated  or 
used  by  any  railroad  or  other  company  for  railroad  or  other 
purposes,    without    the    previous   consent   of    the    general 
assembly ;  and  no  court  or  other  tribunal  shall  have  or  enter- 
tain jurisdiction  of  any  proceeding  instituted  or  to  be  insti- 
tuted for  the  purpose  of  appropriating  any  such  land  for 
any  of  the  purposes  aforesaid,  without  such  previous  consent. 
[Laws  1867,  p.  165;  E.  S.  1887,  p.  648,  §  17;  S.  &  C.,  p.  1053, 
§  17;  Cothran,  p.  650,  §  17. 


122  EAILROADS,  WABEHOUSES, 

CHAPTEE  82. 

LIENS  UPON   RAILROADS, 

An  act  to  protect  contractors,  sub-contractors  and  laborers  in  their  claims  against 
railroad  companies,  or  corporations,  contractors  or  sub-contractors.  Approved  April  3, 
1872.  In  force  July  1, 1872. 

1073.  LIEN  ON  PROPERTY— for  material,  supplies,  labor, 
&c.  §  1.  Be  it  enacted  by  the  people  of  the  state  of  Illinois, 
represented  in  the  general  assembly,  That  all  persons  who 
may  have  furnished,  or  who  shall  hereafter  furnish  to  any 
railroad  corporation  now  existing,  or  hereafter  to  be  organ- 
ized under  the  laws  of  this  state,  any  fuel,  ties,  material, 
supplies,  or  any  other  article  or  thing  necessary  for  the  con- 
struction, maintenance,  operation  or  repair  of  such  roads,  by 
contract  with  said  corporation,  or  who  shall  have  done  and 
performed,  or  shall  hereafter  do  and  perform  any  work  or 
labor  for  such  construction,  maintenance,  operation  or  repair 
by  like  contract,  shall  be  entitled  to  be  paid  for  the  same  as 
part  of  the  current  expenses  of  said  road;  and  in  order  to 
secure  the  same,  shall  have  a  lien  upon  all  the  property,  real, 
personal  and  mixed,  of  said  railroad  corporation  as  against 
such  railroad,  and  as  against  all  mortgages  or  other  liens 
which  shall  accrue  after  the  commencement  of  the  delivery 
of  said  articles,  or  the  commencement  of  said  work  or  labor: 
Provided,  suit  shall  be  commenced  within  six  months  after 
such  contractor  or  laborer  shall  have  completed  his  contract 
with  said  railroad  corporation,  or  after  such  labor  shall  have 
been  performed  or  material  furnished.  [Laws  1871-2,  p.  279 : 
E.  S.  1887,  p.  852,  §  55;  S.  &  C.,  p.  1533,  §  52;  Cothran,  p.  936, 
§51.] 

1074.  LIEN— /or  what  it  is  given-^not  money  loaned.    This  lien  is 
given  only  for  materials  used,  supplies  furnished  and  for  labor  per- 
formed, in  constructing,  repairing,  operating  or  maintaining  the  road. 
The  loan  of  money  or  the  payment  of  its  creditors,  is  not  embraced  in 
the  statute  giving  the  lien.    C.  &  V.  R.  R.  v.  Fackney,  78  111.  116. 

1075.  A  party,  who  at  the  request  of  a  railway  company,  takes  up 
its  certificates  of  indebtedness  given  to  its  laborers  and  others  for  the 
boarding  of  hands,  is  not  entitled  to  any  lien.    Ib. 

1076.  ASSIGNMENT.    The  lien  of  a  laborer  upon  the  road  for  the 
sum  due  him  is  not  assignable  at  law.    The  lien  is  enforceable  only  in 
equity.    76. 

1077.  UNDER  ACT  OF  1861.    Under  the  act  of  1861,  no  one  is  enti- 
tled to  a  lien,  unless  his  contract  was  directly  with  the  railroad  com- 
pany, and  suit  is  brought  within  three  months  after  the  action  accrues. 
Arbuckle  v.  III.  Midland  Ry.,  81  111.  429. 

1078.  ACT  OF  1872.    This  act  relates  only  to  labor  and  materials 
furnished  after  its  passage,  and  gives  no  lien  for  labor,  &c.,  furnished 
before  its  passage.    Ib. 

1079.  Lien  of  material-man,  who  begins  proceedings  to  enforce 
his  lien  within  six  months  after  last  delivery  of  materials,  is  superior 


AND  EMINENT  DOMAIN.  123 

to  lien  of  mortgage  made  after  date  of  such  last  delivery  and  before 
bringing  suit  to  enforce  lien.  C.  &  A.  R.  R.  v.  Union  Rolling  Mill 
Co.,  109  U.  S.  702. 

1080.  Statutory  lien  held  not  waive^  by  special  contract,  that  the 
contractor  shall  have  a  lien  on  the  rails  till  payment ;  nor  to  give 
credit  beyond  the  time  within  which  the  statutory  lien  shall  be  en- 
forced, when  the  purchaser  fails  to  perform  the  conditions  upon 
which  that  credit  was  agreed  to  be  given.  J6. 

1081.       SUB-CONTRACTOE — LABORER —LIEN.        §   2.       Every 

person  who  shall  hereafter,  as  sub-contractor,  material-man, 
or  laborer,  furnish  to  any  contractor  with  any  such  railroad 
corporation,  any  fuel,  ties,  materials,  supplies,  or  any  other 
article  or  thing,  or  who  shall  do  and  perform  any  work  or 
labor  for  such  contractor  in  conformity  with  any  terms  of  any 
contract,  express  or  implied,  which  such  contractor  may  have 
made  with  any  such  railroad  corporation,  shall  have  a  lien 
upon  all  the  property,  real,  personal  and  mixed,  of  said  rail- 
road corporation:  Provided,  such  sub-contractor,  material- 
man  or  laborer,  shall  have  complied  with  the  provisions  of 
this  act;  but  the  aggregate  of  all  liens  hereby  authorized 
shall  not,  in  any  case,  exceed  the  price  agreed  upon  in  the 
original  contract  to  be  paid  by  such  corporation  to  the  origi- 
nal contractor:  And,  provided,  further,  that  no  such  lien 
shall  take  priority  over  any  existing  lien.  [R.  8-  1887,  p. 
852,  §  56;  S.  &  C.,  p.  1533,  §  53;  Cothran,  p.  936,  §  52.] 

1082.  LIEN  DOES  NOT  EXTEND  BEYOND  SUB-CONTRACTOR.    The 
statute  giving  liens  on  railroads  does  not  extend  beyond  sub-contrac- 
tors.   One  furnishing  materials  to  a  sub-contractor  has  no  lien  against 
the  railroad  company  or  its  property.    Cairo  &  St.  L.  R.  R.  v.  Watson, 
85  111.  531. 

1083.  PETITION — must  show  the  necessary  steps  taken.    In  a  pro- 
ceeding by  a  sub-contractor  to  obtain  a  lien  against  a  railway  company 
for  work  and  materials  furnished  according  to  an  agreement  with  the 
original  contractor,  it  must  appear   that  all  the   steps  required  by 
the  statute  have  been  taken.    Cairo  &  St.  Louis  R.  R.  v.  Cauble,  4 
Bradw.  133. 

1084.  RELEASE  OF,  BY  CONTRACTOR.    A  release  of  all  claims  to  a 
lieu  by  the  contractor  to  the  owner,  is  a  waiver  of  his  right  to  a  lien, 
and  the  sub-contractors  taking  their  contracts  subject  to  the  fulfill- 
ment of  the  original  contract,  are  equally  bound,  and  not  entitled  to  a 
lien.     Whitcomb  v.  Eustace,  6  Bradw.  574. 

1085.  OF  LABORER — relation  of  sub-contractor  to  general  con- 
tractor.   The  work  in  a  general  contractor's  contract  was  required 
to  be  performed  in  such  manner  as  not  to  relieve  him  from  the 
immediate  charge  and  responsibility  of  the  work,  and  were  such  that 
the  company  might  forfeit  the  same  for  the  neglect  to  put  on  a  sufficient 
force  to  complete  the  work  in  the  time  stipulated,  or  to  require  him 
to  make  up  balances  due  to  the  laborers  or  persons  furnishing  mater- 
ials or  supplies  monthly.  Held,  that  the  relations  of  the  sub-contractor 
to  the  general  contractor  were  such  that  the  work  done  and  materials, 
furnished  under  sub-contracts  could  be  regarded  as  materials  furnished 
or  labor  done  under  his  contract,  so  as  to  enable  those  furnishing  the 
same  to  enforce  a  lien  against  the  road.    Solomon  v.  Nicholson,  113 
111.  351. 


124  BAILROADS,  WAREHOUSES, 

1086,  Where  a  general  contractor  for  building  a  road  is  held  liable 
to  the  company  to  protect  it  against  liens  of  laborers  and  material- 
men,  in  a  contract  sub-letting  a  part  of  the  work,  reserved  the  option 
to  retain  in  his  own  hands  the  amount  of  estimates,  or  such  part 
thereof  as  he  might  deem  necessary,  and  pay  the  laborers  and  other 
creditors  of  the  sub-contractor,  and  charge  the  amount  thereof  as  so 
much  money  paid  to  him,  the  general  contractor  may  keep  back  esti- 
mates due  the  sub-contractor,  and  pay  it  out  on  debts  incurred  by 
him  in  attempting  to  perform  his  sub-contract;  and  in  so  doing  the 
general  contractor  cannot  be  charged  with  meddling  in  his  affairs,  and 
such  general  contractor  may  make  such  payment  through  the  sub- 
contractor as  his  agent,  or  by  any  other  agent.  76.  » 

1087.  NOTICE  OF  LIEN  —  copy  of  contract,   when  to  be 
served.     §  3.     The  person  performing  such  labor,  or  furnish- 
ing such  material,    shall  cause  a  notice,    in  writing,   to  be 
served  on  the  president  or  secretary  of  such  railroad  corpo- 
ration, substantially  as  follows,  viz: 

To president,  (or  secretary,  as  the  case  may  be)  of  the :  You  are  hereby 

notified  that  I  am  (or  have  been)  employed  by aa  a  laborer  (or  have  furnished  sup- 
plies, as  the  case  may  be)  on  or  for  the   ,  and  that  I  shall  hold  all  the  property  of 

said  railroad  (or  railway,  as  the  case  may  be)  company  to  secure  my  pay. 

If  there  shall  be  a  contract  in  writing  between  the  original 
contractor  and  sub-contractor,  material-man  or  laborer,  a 
copy  of  such  contract,  if  the  same  can  be  obtained,  shall  be 
served  with  such  notice  and  attached  thereto,  which  notice 
shall  be  served  at  any  time  within  twenty  days  after  the  com- 
pletion of  such  sub-contract,  or  such  labor :  Provided,  that 
no  lien  shall  attach  in  favor  of  any  person  performing  such 
labor  or  furnishing  material  until  such  notice  shall  have  been 
served  as  above,  or  filed  for  record  as  hereinafter  provided. 
[K.  S.  1887,  p.  852,  §  57;  S.  &  C.,  p.  1534,  §  54;  Cothran,  p. 
937,  §  53.J 

1088.  NOTICE  TO  COMPANY  ESSENTIAL — sufficiency  of  petition  as 
to  notice.    A  sub-contractor  is  not  entitled  to  a  lien,  unless  he  com- 
plies with  the  statute  in  giving  notice  to  the  company.    A  petition 
showing  the  filing  of  a  notice  with  the  circuit  clerk,  without  averring 
that  the  president  and  secretary  of  the  company  did  not  reside  in  the 
county,  or  could  not  be  found  in  the  county,  is  fatally  defective  as 
failing  to  show  a  right  to  the  lien.    Cairo  &  St.  Louis  R.  R.  v.  Cauble, 
85  111.  555. 

1089.  SAME — copy  of  contract.    Copy  of  sub-contractor's  contract 
must  accompany  the  notice,  but  a  copy  of  the  contract  between  the 
original  contractor  and  the  company  need  not  be  attached  thereto. 
Cairo  &  St.  Louis  R.  R.  v.  Cauble,  4  Bradw.  133. 

1090.  WHEN  NOTICE  TO  BE  FILED  WITH  CLERK — RECORD 
OF  SAME — mailing  copy  to  president,  &c.  §  4.  If  neither 
the  president  or  the  secretary  of  such  railroad  corporation 
shall  reside  or  can  be  found  in  the  county  in  which  the  sub- 
contract was  made,  or  labor  performed,  the  laborer,  or  person 
furnishing  labor  or  material,  shall  file  said  notice  in  the  office 
of  the  clerk  of  the  circuit  court;  and  the  clerk  of  the  circuit 
court  shall  file  and  keep  a  record  of  said  notice,  and  cause  a 


AND  EMINENT  DOMAIN.  125 

copy  of  the  same  to  be  mailed  to  the  president  or  secretary 
of  said  company,  for  which  he  shall  receive  the  sum  of  twenty- 
five  cents,  and  said  clerk  shall  keep  a  list  of  the  names  of  the 
persons  so  claiming  lien,  and  the  names  of  the  corporation 
against  which  such  liens  are  claimed.  [E.  S.  1887,  p.  853,  § 
58;  S.  &  C.,  p.  1534,  §  55;  Cothran,  p.  937,  §  54.  J 

1091.  ACTION  FOR  SUM  DUE — JOINDER  OF  PARTIES—; filing 
transcript  of  justice  in  circuit  court.     §  5.  If  the  money  due 
the  person  having  given  notice  as  aforesaid,  shall  not  be  paid 
within  ten  days  after  the  money  shall  become  due  and  paya- 
ble, then  such  person  may  commence  suit  therefor,  in  any 
court  having  jurisdiction  of  the  amount  claimed  to  be  due, 
against  the  corporation  with  which  the  original  contract  was 
made;  or  he  may  commence  suit,  as  aforesaid,  against  such 
railroad  corporation  and  original  contractor  jointly,  and  exe- 
cution to  issue  as  in  other  cases.     If  execution,  issued  on 
judgment  obtained  before  a  justice  of  the  peace,  shall  be  re- 
turned not  satisfied,  a  transcript  of  such  judgment  may  be 
taken  to  the  circuit  court,  and  spread  upon  the  records  thereof, 
and  shall  have  all  the  force  and  effect  of  judgments  obtained 
in  the  circuit  court,  and  execution  issued  thereon  as  in  other 
cases.     [  E.  S.  1887,  p.  853,  §  59;  S.  &  C.,  p.  1534,  §  56;  Coth- 
ran, p.  937,  §55.J 

1092.  ATTORNEY'S    FEE — to  be    taxed    as  costs.    §    6. 
Whenever  any  suit,  so  brought,  shall  be  determined  in  favor 
of  the  plaintiff,  the  court  shall  allow,  if  before  a  justice,  $5, 
if  in  a  court  of  record,  $20,  attorney's  fees  to  be  taxed  as 
costs,     [E.  S.  1887,  p.  853,  §  60;  S.  &  C.,  p.  1535;  §  57;  Coth- 
ran, p.  938,  §  56  ] 

1093.  FAILURE  OF  ORIGINAL  CONTRACTOR  TO  COMPLETE 
CONTRACT;  PETITION — notice  and  decree.     §  7.     Should  the 
original  contractor  in  any  case  fail  to  complete  his  contract, 
any  person  entitled  to  a  lien,  as  aforesaid,  may  file  his  peti- 
tion in  any  court  of  record,   in  any  county  through  which 
the  road  may  be  constructed,  against  the  railroad  corporation 
and  the  contractors,  setting  forth  the  nature  of  his  claim, 
and  the  amount  due  as  near  as  may  be,  [and]  the  fact  that 
the  contractor  has  failed  to  complete  his  contract.     The  clerk 
of  said  court  shall  thereupon  cause  a  notice  to  be  published 
for  four  successive  weeks  in    a  newspaper   printed  in  the 
county,  setting  forth  that  said  petition  has  been  filed,  and  the 
time  when  the  writ  issued  on  the  same  shall  have  been  made 
returnable,  and  all  persons  entitled  to  liens  under  this  act 
may  enter  their  appearance  and  interplead  in  said  cause,  and 
have  their  claims  adjudicated;  and  it  shall  be  the  duty  of  the 
court,  in  case  the  petitioner  or  claimants,  or  either  of  them, 
establish  their  claims,  to  enter  a  decree  against  said  corpor- 


126  KAILEOADS,  WAREHOUSES, 

ation  aiid  original  contractor,  for  the  amount  to  which  the 
persons  so  establishing  their  claims  are  respectively  entitled, 
and  such  decree  shall  have  the  same  force  and  effect  as 
decrees  in  other  cases.  [E.  S.  1887,  p.  853,  §  61;  S.  &  C.,  p. 
1535,  §  58;  Cothran,  p.  938,  §  57.] 

1094.  LIMITATION — suit  in  three  months.  §8.  The  lien 
hereby  created  shall  continue  for  three  months  from  the  time 
of  the  performance  of  the  sub-contract,  or  doing  of  the  work 
or  furnishing  the  material  as  aforesaid,  except  when  suit 
shall  be  commenced  by  petition  as  aforesaid,  and  in  such 
cases  all  liens  shall  be  barred  by  decree  entered  in  such 
cause.  [E.  S.  1887,  p.  853,  §  62;  S.  &  C.,  p.  1535,  §59;  Coth- 
ran, p.  938,  §  58.] 

1095.  TIME  OF  FILING  PETITION.    The  statute  provides  that  the 
lien  shall  continue  for  three  months  from  the  time  of  the  performance 
of  the  work  or  furnishing  the  material;  and  suit  to  enforce  such  lien 
must  be  begun  within  the  time  limited.    C.  &  St.  L.  R.  R.,  v.  Cauble, 
4  Bradw.  133. 

1096.  DECREE.    Should  be  against  the  railroad  and  the  original 
contractor,  and  the  lien  should  only  be  enforced  and  the  property  of 
the  company  sold  in  default  of  payment,  within  a  clay  to  be  fixed  by 
the  court.    Ib.    %  9,  repealed.    See  R.  S.  chap.  131,  §  5,  and  therefore 
omitted. 


CHAPTEE  110. 
PRACTICE. 

1097.  ACTION  AGAINST  RAILWAY  COMPANY — in  what  county 
brought.  |  2.  *****  Actions  against  a  railroad  or 
bridge  company,  may  be  brought  in  the  county  where  its 
principal  office  is  located,  or  in  the  county  where  the  cause  of 
action  accrued  or  in  any  county  into  or  through  which  its 
road  or  bridge  may  run.  [Laws  of  1877,  p.  146;  Laws  of 
1871-2,  p.  338,  §  2;  E.  S;  1887,  p.  970,  §  2;  S.  &  C.,  p.  1773, 
§  2;  Cothran,  p.  1090,  §  2.  See  Laws  1861,  p.  180,  §  L] 

1098.  See  Bristol  v.  Ch,.  &  Aurora  R.  R.,  15  111.  436;  Peoria  Ins. 
Co.  v.  Warner,  28  111.  429;  III.  Cen.  R.  R.  v.  Swearingen,  33  111.  289; 
Mineral  Point  R.  R.  v.  Keep,  22  111.  9. 

1099.  SERVICE  ON  CORPORATION — return  of— publication. 
§  4.  An  incorporated  company  may  be  served  with  process 
by  leaving  a  copy  thereof  with  its  president,  if  he  can  be 
found  in  the  county,  in  which  the  suit  is  brought,  if  he  shall 
not  be  found  in  the  county,  then  by  leaving  a  copy  of  the  pro- 
cess with  any  clerk,  secretary,  superintendent,  general  agent, 
cashier,  principal,  director,  engineer,  conductor,  station  agent 
or  any  agent  of  said  company  found  in  the  county,  *  and 
in  case  the  proper  officer  shall  make  return  upon  such  process 


AND  EMINENT  DOMAIN.  127 

that  he  cannot  in  his  county  find  any  clerk,  secretary,  super- 
intendent, general  agent,  cashier,  principal,  director,  engineer, 
conductor,  station  agent  or  other  agent  of  said  company,  then 
such  company  may  be  notified  by  publication  and  mail  in  like 
manner  and  with  like  effect,  as  is  provided  in  sections  twelve 
and  thirteen  of  an  act  entitled,  "An  act  to  regulate  the  prac- 
tice in  courts  of  chancery,"  approved  March  15,  1872.  [B. 
S.  1887,  p.  970,  §  5,  as  amended  by  Laws  of  1877,  p.  146,  which 
added  the  portion  after  asterisk  *  ;  S.  &  C.,  p.  1777,  §  5; 
Cothran,  p.  1091,  §  5.  For  service  from  justice  of  the  peace, 
see  K.  S.  1887,  p.  822,  §  21;  S.  &  C.,  p.  1440,  §  21;  Cothran, 
p.  888,  §  21.] 

1100.  SHOWING  PARTY  SERVED  is  PRESIDENT— amending.     On 
bill  to  foreclose  mortgage,  the  summons  against  a  bank  was  returned 
served  by  delivering  a  copy  to  F.  M.    The  sheriff  was  allowed  to  amend 
his  return  out  of  court  by  adding  that  F.  M.  was  president  of  the  bank. 
Held,  that  the  amendment  was  properly  allowed.    Montgomery  v. 
Brown,  2  Gilm.  581. 

1101.  AN  AGENT — of  foreign  railway  company.    If  railroad  com- 
panies having  their  officers  and  offices,  do  business,  and  have  agents 
and  property  in  this  state,  service  of  process  may  be  made  upon  such 
agents  in  this  state  in  the  same  manner  as  upon  agents  of  local  cor- 
porations.   Mineral  Point  R.  R.  v.  Keep,  22  111.  9. 

1102.  AGENCY  MAY  BE  DENIED.    If  the  fact  of  the  agency  is  de- 
nied, the  return  of  the  officer  as  to  that,  is  not  conclusive.    This  should 
be  put  in  issue  by  plea  in  abatement.    Ib. 

1103.  WHAT  KIND  OF  AGENT.    The  service  of  process  iipon  any 
agent  other  than  the  law  agent  of  a  corporation,  is  sufficient,  if 
properly  made  and  returned.    Ch.  &  R.  I.  R.  R.  v.  Fell,  22  111.  333. 

1104.  ON  PRESIDENT.     Where  a  corporation  is  sued,  the  service 
should  be  on  its  president,  if  he  resides  iu  the  county  in  which  the  suit 
is  brought.    III.  &  Miss.  Tel.  Co.  v.  Kennedy,  24  111.  319. 

1105.  RETURN.    The  return  must  be  positive  as  to  the  service  on 
the  president,  and  the  sheriff  must  take  the  responsibility  of  determ- 
ining the  fact.    To  serve  the  writ  on  A.  B.,as  president,  is  not  in  com- 
pliance with  the  statute.    2  b. 

1106.  WHEN  ON  AGENT.    Process  may  be  served  upon  an  agent 
of  a  corporation  in  any  county,  provided  the  president  of  the  company 
does  not  reside  in  the  county  where  the  process  is  issued.    Peoria  Ins. 
Co.\.  Warner,  28111.429. 

1107.  A  court  has  jurisdiction  over  a  corporation  of  this  state  by 
service  upon  an  agent,  although  its  principal  place  of  business  may  be 
in  a  different  county  from  that  where  the  agent  was  served.    76. 

1108.  ON  COUNTY.    In  suits  against  a  county  the  process  must  be 
served  upon  the  clerk  of  the  county  court,  and  the  service  must  be  at 
his  otlice.    Kane  Co.  v.  Young,  31  111.  194. 

1109.  OUT  OF  COUNTY.    Where  the  action  was  brought  in  the 
plaintiff 's  county  where  the  cause  of  action  accrued,  against  a  corpo- 
ration of  the  state,  having  its  principal  office  in  another  county,  and 
service  of  process  was  made  upon  the  president  in  such  foreign  county: 
Held,  that  the  service  was  insufficient  to  give  jurisdiction.    Steplicn- 
son  Ins.  Co.  v.  Dunn,  45  111.  211;  Ins.  Co.  v.  Holzgrafe,  46  III.  422. 

1110.  In  such  case  the  process  should  be  sued  out  to  the  county  of 
the  plaintiff 's  residence,  and  if  the  president  does  not  reside,  or  can- 


128  KAILEOADS,  WAREHOUSES, 

not  be  found  therein,  it  may  be  served  upon  any  other  agent  of  the 
company  found  in  the  county,  and  a  return  of  sucli  facts  will  give  the 
court  jurisdiction.  Ib. 

1112.  ON  AGENT.    In  order  that  a  return  of  service  on  an  agent 
may  be  held  good,  it  must  show  that  the  president  of  the  company 
did  not  reside  in,  or  was  absent  from  the  county.    St.  L.,  A.  cfe  T.  H.  R. 
R.  v.  Dorsey,  47  111.  288. 

1113.  MUNICIPAL  COKPOKATIONS.    In  an  action  against  a  munici- 
pal corporation,  service  upon  the  mayor  and  city  clerk  was  held  suffi- 
cient.   The  general  statute  has  no  application  to  such  corporations. 
People  v.  Cairo,  50  111.  154. 

1114.  ABSENCE  OF  PRESIDENT.    A  return  of  service  upon  the  cash- 
ier of  an  incorporated  company  showed,  "  the  president  not  found  in 
my  county,  he  being  a  non-resident."    Held,  sufficient.    Reed  v.  Tyler, 
56  111.  288. 

1115.  JUSTICES'  SUMMONS.    A  justice's  garnishee  summons  was 
returned,  "  served  the  within  by  reading  to  the  within  named  company 
therein  Jan.  15,  1870."    Held,  that  the  service  was  a  nullity  and  gave 
the  court  no  jurisdiction.    Grand  Tower  M.  &  M.  &  Transp.  Co.  v. 
Schirmer,  64  111.  106. 

1116.  The  act  of  1853  requires  the  service  of  process  upon  an  in- 
corporated company  to  be  made  on  its  president,  if  he  is  a  resident  of 
the  county,  and  if  he  is  absent  from  the  county,  or  does  not  reside 
therein,  that  service  shall  be  made  by  leaving  a  copy  with  any  one  of 
the  several  officers  therein  named.    The  service  must  be  by  copy,  and 
the  return  should  state  the  name  of  the  person  so  served.    Ib. 

1117.  ON  AGENT.    Where  the  president  of  an  insurance  company 
does  not  reside  in  the  county  where  suit  is  brought  against  the  com- 
pany, the  statute  authorizes  service  to  be  made  upon  an  agent  of  the 
company  resident  in  the  county.    Sills  v.  Stanton,  6U  111.  51. 

1118.  BY  COPY  ONLY.    Service  of  process  on  a  railroad  company 
under  the  practice  act  in  force  July  1,  1872,  can  only  be  by  leaving  a 
copy  with  the  proper  person,  and  cannot  be  by  reading  the  same.    C. 
&  V.  R.  R.  v.  Joiner,  72  111.  520. 

1119.  ON  AGENT.    Where  tne  return  of  the  officer  states  that  he 
read  the  process  to  a  station  agent,  (naming  him)  of  the  defendant,  the 
president  and  secretary  not  being  residents  of  the  county,  it  is  defec- 
tive, both,  because  it  shows  an  attempted  service  by  reading  instead 
of  by  copy,  and  because  it  does  not  show  that  the  president  could  not 
be  found  in  the  county.    The  fact  that  he  was  not  a  resident  of  the 
county  does  not  exclude  the  idea  that  he  might  have  been  found  therein 
at  the  time  of  service.    Ib. 

1120.  EAILW AY  COMPANY.  The  return  on  a  summons  was:  "Served 
the  within  named  railroad  company  by  reading  the  same  and  deliver- 
ing a  copy  thereof  to  C.  D.,  cashier  of  said  railroad  company  this,  &c., 
the  president  of  said  company  could  not  be  found  in  my  county  this," 
&c.:  Held,  that  the  last  date  was  evidently  the  date  of  the  return  of  the 
writ  and  that  the  return  shows  that  on  the  first  named  day.  when  the 
writ,  was  served,  the  president  could  not  be  found,  and  that  the  service ' 
and  return  was  in  strict  conformity  to  the  statute.    Ch.  &  Pac.  R.  R. 
v.  K<ehler,  79  111.  354. 

1121.  AGENCY  DENIED.    On  motion  to  quash  a  return  of  service 
of  a  summons  against  a  corporation,  which  shows  service  on  one  as 
agent,  where  the  agency  is  denied,  the  defendant  must  disprove  the 
agency,  or  the  motion  will  be  overruled.    Protection  Life  Ins.  Co.  v. 
Palmer,  81  111.  88. 

1122.  The  question  whether  the  person  served  was  an  agent,  can- 


AND  EMINENT  DOMAIN.  129 

not  be  raised  by  plea  in  abatement.    Such  a  plea  does  not  furnish  a 
better  writ.    2b.    Contra,  see  Mineral  Point  R.  R.  v.  Keep,  22  111.  9. 

1123.  The  return  of  a  sheriff  on  a  summons  against  an  incor- 
porated company,  that  he  has  ''served  the  within  named  company  by 
reading  and  delivering  a  copy  thereof  to  A.  B.,  president  of  said  com- 
pany," shows  a  sufficient  service  on  the  company.    Rock  Valley  Paper 
Co.  v.  Nixon,  84  111.  11. 

1124.  AGENT  OTHER  THAN  PRESIDENT.    To  authorize  the  service 
of  summons  against  a  corporation  upon  any  officer  or  agent  other 
than  its  president,  it  must  appear  by  the  return  that  the  president 
cannot  be  found  in  the  county;   and  even  where  this  fact  appears,  a 
return  of  service  on  A.  B.  "as  secretary"  cannot  be  sustained.    It 
must  be  stated  he  is  secretary  of  the  company.    Ch.  Planing  Mill  Co. 
v.  Merchants'  Nat.  Sank,  86  111.  587. 

1125.  AGENCY  or  FOREIGN  CORPORATION.    In  a  suit  against  a 
corporation  created  by  an  act  of  congress,  not  residing  or  doing  busi- 
ness in  this  state,  service  of  process  upon  an  agent  appointed  by  the 
land  commissioner  of  the  corporation  and  its  trustees,  whose  business 
is  merely  to  receive  and  transmit  offers  for  lands  and  to  assist  in 
making  sales,  will  not  give  the  court  jurisdiction,  such  person  not 
being  an  agent  of  the  corporation,  in  the  sense  of  the  statute.     Union 
Pac.  R.  R.  v.  Miller,  87  111.  45. 

1126.  ABATEMENT  TO  RETURN.    A  corporation  may  put  in  issue 
the  fact  of  the  service  of  process  upon  it  by  plea  in  abatement,  and 
thus  contradict  the  officer's  return,  which  is  only  prima  facie  evidence 
of  the  truth  of  the  facts  therein  recited.     Union  Nat.  Bank  v.  First 
Nat.  Bank,  90  111.  56.    See  Mineral  Point  R.  R.  v.  Keep,  22  111.  9; 
Holloway  v.  Freeman,  Id.  197;  Sibert  v.  Thorp,  77  111.  43;  Protection 
Life  Ins.  Co.  v.  Palmer,  81  111.  88;  C.  &  St.  L.  R.  R.  v.  Holbrook,  92 
111.  297. 

1127.  AGENTS  OF   FOREIGN   CORPORATION.     Where  a   foreign 
corporation  does  business  and  has  agents  in  this  state,  with  property, 
service  may  be  had  upon  such  corporation  through  such  agents  or 
officers  doing  business  here,  the  same  as  upon  domestic  corporations. 
Midland  Pac.  Ry.  v.  McDermid,  91  111.  170. 

1128.  But  where  a  foreign  corporation  does  not  transact  its  busi- 
ness in  this  state,  and  has  no  office  or  agents  located  in  this  state, 
service  of  process  upon  one  of  its  officers  or  agents  while  temporarily  in 
this  state  on  private  business,  or  passing  through  it,  will  confer  no 
jurisdiction  on  the  courts  over  such  corporation.    76. 

1129.  'SUFFICIENCY  OF  RETURN.    A  sheriff's  return  of  service  of 
summons  against  a  railway  corporation  was:    "Sept.  4, 1872, served  by 
reading  to  and  delivering  a  true  copy  to  C.  D.,  a  director  of  the 
defendant,  the  president  of  the  defendant  not  residing  or  being  found 
in  my  county:"    Held,  on  bill  to  enjoin  the  collection  of  the  judg- 
ment, that  the  return  was  sufficient  and  gave  the  court  jurisdiction 
Cairo  &  St.  Louis  R.  R.  v.  Holbrook,  92  111.  297. 

1130.  FOREIGN  CORPORATION.    Foreign  corporations  doing  busi- 
ness in  this  state  are  liable  to  be  sued  the  same  as  domestic  corpora- 
tions or  citizens,  and  process  may  be  served  upon  its  agents  in  this 
state,  and  the  word  "process"  in  the  practice  act  embraces  process  of 
every  kind  including  garnishee  process.  Hannibal  &  St.  Joseph  R.  R. 
v.  Crane,  102  111.  249. 

1131.  INTERESTED  DIRECTOR.    On  a  bill  by  a  director  of  a  private 
corporation  and  others,  stockholders  and  creditors  of  the  corporation, 
the  only  service  on  the  corporation  was  by  leaving  a  copy  of  the  sum- 
mons with  the  complainant  director,  the  return  stating  that  "the 
president,  clerk,  secretary,  superintendent,  general  agent,  cashier  and 

—10 


130  RAILROADS,  WAREHOUSES, 

principal  of  said  company  not  found."  The  bill  alleged  that  the 
president  and  all  the  other  directors  and  officers  of  the  company  were 
non-residents:  Held,  that  the  service  as  to  the  corporation  was  void, 
the  director  with  whom  the  notice  was  left,  being  a  party  complain- 
ant in  the  suit,  and  the  service  being  void,  advantage  might  be  taken 
of  it  on  error,  as  well  as  in  the  trial  court.  St.  L.  &  8.  Coal  &  Mining 
Co.  v.  Edwards,  103  111.  472;  St.  Louis  &  Sandoval  Coal  &  Mining  Co. 
v.  Sandoval  Coal  &  Mining  Co.,  Ill  111.  32. 

1132.  SUFFICIENCY  OF  RETURN.    A  return  to  a  summons  against 
a  private  corporation  was  as  follows:    "Served  this  writ  on  the 
within  named  defendant,  C.  S.  E.  U.  Co.,  by  delivering  a  copy  thereof 
to  E.  N.  K.,  director  and  treasurer  of  said  company,  the  president  of 
said  company  not  found  in  my  county,  the  23d  day  of  November, 
1883."    Held,  that  the  return  was  good,  filling  the  requirements  of  the 
statute.    Ch.  Sectional  Electric  Underground  Co.  v.  Congdon  Brake 
Shoe  Manuf.  Co.,  Ill  111.  309. 

1133.  PLEA  IN  ABATEMENT.    A  defendant  corporation  may  plead 
in  abatement  to  the  service  of  process  by  contradicting  the  sheriff's 
return;  and  when  it  tenders  a  material  issue  and  is  properly  verified, 
it  is  error  to  strike  the  plea  from  the  files.    Ib. 

1134.  SAME — its  sufficiency.    A  plea  in  abatement  by  a  corporation 
to  the  jurisdiction  over  its  person,  showing  its  organization  under  the 
laws  of  this  state,  and  its  representation  by  its  president,  naming  him; 
that  at  the  time  of  the  issuing  and  service  of  the  summons  the  president 
was  a  resident  of  the  county,  and  not  absent  from  the  same,  and  that 
the  service  was  not  made  upon  him,  presents  an  immaterial  issue,  and 
is  obnoxious  to  demurrer,  in  not  putting  in  issue  the  return  that  the 
sheriff  was  unable  to  find  the  president  in  the  county.    Ib. 

1135.  FOREIGN  CORPORATION.    Judgment  against  a  foreign  cor- 
poration doing  business  in  this  state  upon  service  on  their  agents,  is  a 
personal  one  and  conclusive  in  other  states.    Penn.  Co.  v.  Sloan,  1 
Bradw.  364,  373. 

1136.  This  section  applies  to  foreign  corporations  doing  business 
in  this  state.    Ib. 

1137.  The  statute  provides  that  service  may  be  made  upon  a  cor- 
poration by  leaving  a  copy  of  the  summons  with  the  president,  secre- 
tary, &c.,  if  either  can  be  found  in  the  county;  if  not,  then  by  leaving 
a  copy  of  the  summons  with  any  director,  clerk,  &c.,  of  such  company 
found  in  the  county.    These  constitute  two  classes,  and  service  upon 
one  class  is  primary  to  service  upon  the  other;  and  before  service 
upon  persons  of  the  second  class  will  confer  jurisdiction,  it  must  ap- 
pear affirmatively  that  service  could  not  be  had  upon  persons  of  the 
first  class.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Dawson,  3  Bradw.  118. 

1138.  The  return  of  the  officer  must  show  that  the  president  of  the 
company  did  not  reside  in,  or  was  absent  from  the  county,  to  make  a 
service  on  a  director,  clerk,  &c.,  a  good  one.    Ib. 

1139.  Service  upon  a  foreign  insurance  company  which  states  that 
the  president  of  the  company  was  not  found  in  the  city  of  A,  but  fails 
to  state  that  he  was  not  found  in  the  county  where  suit  is  brought,  is 
insufficient.    Mich.  State  Ins.  Co.  v.  Abens,  3  Bradw.  488. 

1140.  ON  AGENT— company  having  ceased  to  do  business  in  state. 
The  act  relating  to  foreign  insurance  companies  provides  that  when 
such  company  ceases  to  transact  business  in  this  state,  the  agents  last 
designated,  or  acting  as  such,  shall  be  deemed  to  continue  for  the  pur- 
pose of  serving  process,  &c.,  in  such  case,  and  service  must  be  made 
upon  such  last  designated  agents  of  the  company,  and  the  sheriff 
takes  upon  himself  the  responsibility  of  determining  whether  service 
is  actually  made  upon  an  officer  of  the  company.    Ib. 


AND  EMINENT  DOMAIN.  131 

1141.  WHO  MEANT    BY    LAST   DESIGNATED  AGENT.      The  Statute 

evidently  refers  to  the  agents  last  acting  in  the  entire  state,  and  not 
such  as  may  have  been  dispensed  within  any  particular  county  where 
the  plaintiff  happens  to  reside,  provided  others  remain  in  the  jurisdic- 
tion upon  which  service  can  be  made.  Ib. 

1142.  Foreign  corporations  doing  business  in  Illinois  may  be  sued 
here  in  the  federal  court  though  the  statute  has  provided  no  specific 
form  of  service.     Wilson  Packing  Co.  v.  Hunter,  8  Biss.  429. 

1143.  A  foreign  insurance  company  doing  business  in  this  state 
may  be  served  with  process  under  the  above  section.    Johnson  v. 
Hanover  Fire  Ins.  Co.,  11  Biss.  452. 

1143a.  DOMICILE  OR  RESIDENCE  OF  RAILWAY  COMPANY.  See  S. 
&  M.  R.  R.  v.  Morgan  Co.,  14  111.  163;  Bristol  v.  Ch.  &  Aurora  R.  R., 
15  111.  436;  Mineral  Point  R.  R.  v.  Keep,  22  111.  9;  St.  Glair  v.  Cox, 
106  U.  S.  350;  Bank  v.  Earle,  13  Pet.  588;  State  v.  Milw.  &c.,Ry.,  45 
Wis.  579;  C.,  D.  &  V.  R.  R.  v.  Bank,  82  111.  493. 

11436.  COUNTY  IN  WHICH  TO  BE  SUED.  Bristol  v.  Ch.  &  A.  R.  R., 
15  111.  436;  Winnesheik  Ins.  Co.  v.  Holzgrafe,  46  111.  422;  C.,  D.  &  V. 
R.  R.  v.  Bank,  82  111.  493. 


CHAPTEE  114 
INCORPORATION  OF  RAILWAY  COMPANIES. 

An  act  to  provide  for  the  incorporation  of  associations  that  may  be  organized  for  the 
purpose  of  constructing  railways,  maintaining  and  operating  the  same ;  for  prescribing 
and  defining  the  duties  and  limiting  the  powers  of  such  corporations  when  so  organized! 
Approved  and  in  force  March  1,  1872.  Laws  1871-2,'  p.  635;  R.  S.  1887,  p.  1000;  S.  &  C., 
p.  1907;  Cothran,  p.  1136. 

1144.  INCOEPOEATION — PUEPOSE  AND  POWEK — right  to  own 
and  operate  roads.     §  1.     Be  it  enacted  by  the  people  of  the 
state  of  Illinois,  represented  in  the  general  assembly,  That  any 
number  of  persons,  not  less  than  five,  may  become  an  incor- 
porated company  for  the  purpose  of  constructing  and  operat- 
ing any  railroad  in  this  state,*  and  that  any  and  all  railroads 
or  transportation  companies  authorized  to  be  incorporated 
and  transact  business  in  this  state  by  virtue  of  this  act,  shall 
be  and  they  are  hereby  authorized  and  empowered  to  purchase, 
own,  operate  and  maintain  any  railroad  sold  or  transferred 
under  order  or  powers  of  sale  or  decree  of,  or  sale  under  fore- 
closure of  mortgage  or  deed  of  trust,  and  corporations  here- 
tofore   organized  under   the  provisions   of  the  act  hereby 
amended,  their  successors  or  assigns,  shall  have  and  possess 
all  the  powers  and  privileges  conferred  by  this  act.     [As 
amended  by  act  approved  May  11,  1877.     In  force  July  1, 
1877.     Laws  1877,  p.   163.      Amendment  adds  all  after  as- 
terisk. *B.  S.  1887,  p.  1000;  S.  &  C.,  p.  1907;  Cothran,  p.  1136.] 

1145.  HORSE  AND  DUMMY  ROADS.    It  is  doubtful  whether  this 
law  has  any  application  to  "horse  and  dummy  railroads."    Chapter  66, 
R.  S.,  entitled,  "horse  and  dummy  railroads,"  does  not  provide  for  the 
incorporation  of  this  class  of  railroads.     Wiggins  Ferry  Co.  v.  E.  St. 
L.  Union  Ry.,  107  111.  450. 


132  BAILROADS,  WAREHOUSES, 

1146.  INCORPORATION — as  a  connecting  road.    A  company  may 
organize  under  the  general  railroad  law  to  construct  a  road  exclusively 
within  the  limits  of  a  city,  for  the  purpose  of  transferring  freights  in 
railroad  cars  between  the  different  depots,  wharehouses,  elevators, 
manufactories,  &c.,  that  are  or  may  be  on  its  line,  or  may  be  reached 
by  its  lateral  branches.    Ib. 

1147.  CONSTITUTION  or  1870— effect  on  law  of  1849.    The  general 
railroad  act  of  1849,  so  far  as  it  provided  for  the  formation  of  railway 
companies,  was  not  abrogated  by  the  constitution  of  1870,  and  a  cor- 
poration organized  under  that  law  in  1871,  followed  by  a  user  of  cor- 
porate franchises,  is  a  de  facto  corporation.    Cin.,  La  Fay.  &  Ch.  R. 
R.  v.  Dan.  &  Vln.  R.  R.,  75  111.  113,  116. 

1148.  PRIOR  LAWS— repeal.    The  provision  of  the  general  railroad 
law  of  1849,  prohibiting  railroads  from  entering  cities  without  muni- 
cipal consent,  if  not  repealed  by  implication  by  the  act  of  1872,  is 
wholly  so  by  the  act  of  March  31,  1874.    Ch.  &  W.  Ind.  R.  R.  v.  Dun- 
bar,  100  111.  110,  128. 

1149.  INCORPORATION — under  former  laws.    Under  the  law  of 
1849,  a  railway  company  was  not  fully  organized  and  entitled  to  exer- 
cise all  its  powers  until  the  route  and  termini  of  its  road  were  approved 
by  the  legislature.    Gillinwater  v.  Miss  &  Atlantic  R.  R.,  13  111.  1. 

1149a.  The  Atlantic  &  Mississippi  Railroad  Company  was  a  valid 
and  subsisting  corporation,  having  full  power  to  construct  its  road. 
People  v.  Miss.  &  At.  R.  R.,  14  111.  440. 

11496.  When  the  prerequisites  of  the  charter  have  been  complied 
with,  the  powers  of  the  corporation  come  into  existence,  and  those  of 
the  commissioners  cease.  Smith  v.  Bangs,  15  111.  399. 

1149c.  Special  charters  will  be  valid  notwithstanding  the  constitu- 
tional provision  (Art.  10,  §  1,  Const.  1848,)  requiring  general  laws  for 
such  purposes,  without  any  recital  or  preamble.  Johnson  v.  Joliet  & 
Ch.  R.  R.,  23  111.  202. 

1150.  ORGANIZATION — before   being   abrogated   by   constitution. 
Acts  and  steps  taken  by  corporators  with  a  view  to  organize  prior  to 
the  adoption  of  the  constitution  of  1870  held,  sufficient  to  show  corpo- 
rate existence  and  prevent  the  abrogation  of  charter  under  §  2,  Art. 

II,  of  constitution.    McCartney  v.  Ch.  &Evanston  R.  R.,  112  111.  611. 
1150a.    NEW  COMPANY  OR  RE-ORGANIZATION.    An  act  provided 

that  parties  interested  in  a  trust  deed  of  a  railway  company,  on  pur- 
chase at  the  trustees'  sale,  should  be  incorporated  by  a  different  name 
from  the  old  company,  and  be  invested  with  all  the  corporate  powers, 
&c.,  given  to  the  old  company,  but  gave  the  old  stockholders  no  rights 
in  the  new  one,  and  did  not  require  the  new  company  to  pay  the  debts 
of  the  old  one:  Held,  that  the  act  created  a  new  corporation  and  was 
not  a  re-organization  of  the  old  one,  and  that  the  new  one  took  its 
purchase  subjapt  to  no  liens,  except  such  as  were  paramount  to  the 
trust  deed.  Morgan  Co.  v.  Thomas,  76  111.  120. 

1151.  DE  FACTO  CORPORATION— sufficient  collaterally.    An  or- 
ganization in  fact  followed  by  user  of  corporate  franchises,  is  suffi- 
cient, except  in  a  direct  proceeding  by  quo  warranto  or  scire  facias  by 
the  state.    The  legality  of  the  incorporation  cannot  be  questioned 
collaterally.    Rice  v.R.  Is.  &  A.  R.  R.,  21  111.  93;  Tarbell  v.  Page,  24 

III.  46;  Hamilton  v.  Carthage,  24  111.  22;  Mendota  v.  Thompson,  20  111. 
197;  Jameson  y.  People,  16  111.  257;   Mitchell  v.  Deeds,  49  111.  416; 
Marsh  \.  Astoria  Lodge,  27  III.  421;  Lewiston  v.  Proctor,  27  111.  414; 
Latvson  v.  Kolbenson,  61  111.  405;  Baker  v.  Backus,  32  111.  79;  Mc- 
Carthy v.  Lavasche,  89  111.  270;  Cin.,  La.  F.  &  Ch.  R.  R.  v.  Dan.  & 
Vin.  R.  R.,  75  111.  113, 116;  Goodrich  v.  Reynolds,  31  111.  490;  Osborn 
v.  People,  103  111.  224;  P.  &  P.  U.  Ry.  v.  Peo.  &  F.  Ry.,  105  111.  110; 


AND  EMINENT  DOMAIN.  133 

People  v.  Trustees  of  Schools,  111  111.  171.    Curing  defects  in  organi- 
zation.   See  post  1464, 1465. 

1152.  AETICLES  OF  INCORPORATION  —  RECORDING.     §  2. 
Such  persons  shall  organize  by  adopting  and  signing  articles 
of  incorporation,  which  shall  be  recorded  in  the  office  of  the 
recorder  of  deeds  in  each  county  through  or  into  which  such 
railway  is  proposed  to  be  run,  and  in  the  office  of  the  secre- 
tary of  state.     K.  S.  1887,  p.  1001;  S.  &  C.}  1908;  Cothran, 
p.  1136.     See  post  1173, 1206. 

1153.  ARTICLES — their  contents.   §3.  Such  articles  shall 
contain : 

First — The  name  of  the  proposed  corporation. 

Second — The  places  from  and  to  which  it  is  intended  to 
construct  the  proposed  railway. 

Third — The  place  at  which  shall  be  established  and  main- 
tained the  principal  business  office  of  such  proposed  corpo- 
-ration. 

Fourth — The  time  of  the  commencement  and  the  period 
of  the  continuance  of  such  proposed  corporation. 

Fifth — The  amount  of  the  capital  stock  of  such  corpora- 
tion. 

Sixth — The  names  and  places  of  residence  of  the  several 
persons  forming  the  association  for  incorporation. 

Seventh — The  names  of  the  members  of  the  first  board  of 
directors,  and  in  what  officers  or  persons  the  government  of 
the  proposed  corporation  and  the  management  of  its  affairs 
shall  be  vested. 

Eighth — The  number  and  amount  of  shares  in  the  capital 
stock  of  such  proposed  corporation. 

[E.  S.  1887,  p  1001,  §  3;  S.  &  0.,  p.  1908,  §  3;  Cothran,  p. 
1136,  §3.] 

1155.  CORPORATION — when  brought  into  existence — gen- 
eral powers — evidence  of  incorporation.  §  4.  When  the 
articles  shall  have  been  filed  and  recorded  as  aforesaid,  the 
persons  named  as  corporators  therein  shall  thereupon 
become  and  be  deemed  a  body  corporate,  and  shall  there- 
upon be  authorized  to  proceed  to  carry  into  effect  the  objects 
set  forth  in  such  articles,  in  accordance  with  the  provisions 
of  this  act.  (a)  As  such^  body  corporate  they  shall  have 
succession,  and  in  their  corporate  name  may  sue  and  be 
sued,  plead  and  be  impleaded.  The  said  corporation  may 
have  and  use  a  common  seal,  which  it  may  alter  at  pleasure; 
may  declare  the  interests  of  its  stockholders  transferrable; 
establish  by-laws,  and  make  all  rules  and  regulations  deemed 
necessary  for  the  mangement  of  its  affairs  in  accordance 
with  law.  (&)  A  copy  of  any  articles  of  incorporation  filed 
and  recorded  in  pursuance  with  this  act,  or  of  the  record 
thereof,  and  certified  to  be  a  copy  by  the  secretary  of  state,  or 


134  BAILROADS,  WAREHOUSES, 

his  deputy,  shall  be  presumptive  evidence  of  the  incorpora- 
tion of  such  company,  and  of  the  facts  therein  stated,  (c) 
[B.  S.  1887,  p.  1001;  S.  &  C.,  p.  1908;  Cothran,  p.  1137. 
(a)  See  next  section.  (6)  See  post,  pp.  1157-1165.  (c)  See 
post,  pp.  1166-1171  (c).] 

(A)  WHAT  CONSTITUTES  A  CORPORATION. 

1156.  WHEN  INCORPORATION  is  COMPLETE— recording  of  arti- 
cles. The  recording  of  the  articles  of  incorporation  seems  essential  to 
the  corporate  existence.  Buff.  &  Alleg.  R.  R.  v.  Gary,  26  N.  Y.  75; 
Ind.  Furnace  &  M.  Co.  v.  Her/timer,  46  Ind.  142 ;  Hunt  v.  Kansas  &  M 
Bridge  Co.,  11  Kan.  412;  Oroville  &  V.  R.  R.  v.  Plumas  Co.,  37  Cal' 
354;  Abbott  v.  0.  Smelting  Co.,  4  Neb.  416;  Baili  Calvert  Col.  Ed.' 
floe.,  47  Md.  117;  Stone  v.  Gr.  Western  Oil  Co.,  41  111.  85.  See  Stowe  v. 
Flagg,  72  111.  401;  Cresswell  v.  Oberly,  17  Bradw.  281. 

1156a.  CORPORATION  —  when  formed.  A  railway  corporation, 
under  the  general  law,  does  not  become  a  legal  body  until  all  the  require- 
ments of  the  statute  have  been  complied  with,  and  the  articles  filed 
in  the  office  of  the  secretary  of  state.  While  they  remain  in  the  hands 
of  a  subscriber,  before  filing,  he  may  erase  his  subscription  or  modify 
it.  Burt  v.  Farrar,  24  Barb.  518.  But  see  Cross  v.  Pinckneyville  Mill 
Co.,  17  111.  54. 

11566.  Where  a  general  law  provides  that  persons,  who  shall,  by 
articles  in  writing,  associate  themselves,  and  comply  with  the  law, 
shall  become  a  body  corporate,  such  persons  will  not,  by  merely 
executing  the  articles  to  that  effect,  without  complying  with  the  other 

? revisions  of  the  law,  become  a  corporation .  Bigelow  v.  Gregory,  73 
11. 197. 

1156c.  Where  a  general  law  provides  that  persons  may  incorporate 
by  complying  with  its  provisions,  one  of  which  is,  that  before  com- 
mencing business,  its  articles  shall  be  published  in  a  certain  way,  and 
a  certificate  of  the  purposes  of  the  organization  shall  be  filed  in  a  cer- 
tain public  office,  the  performance  of  these  acts  is  a  necessary  pre- 
requisite to  the  existence  of  such  corporation.  76. 

1156d.  Until  a  fire  insurance  company  has  fully  completed  its  or- 
ganization by  filing  the  auditor's  certificate  with  the  county  clerk, 
that,  &c.,  the  transaction  of  business  is  unauthorized.  Gent  v.  M.  &. 
M.  Hut.  Ins.  Co.,  107  111.  652. 

1156e.  A  corporation  must  have  full  and  complete  organization 
and  existence  as  an  entity  before  it  can  enter  into  any  kind  of  con- 
tract, or  transact  any  business.  Ib. 

1156/.  CORPORATE  EXISTENCE— difference  under  charter  and 
general  law.  There  is  a  marked  difference,  as  to  the  effect  of  irregu- 
larities and  omissions  in  the  organization  of  corporations,  between  a 
case  where  the  corporation  is  created  by  special  charter  followed  by 
acts  of  user,  and  a  case  where  individuals  seek  to  form  themselves 
into  a  corporation  under  a  general  law.  In  the  latter  case  it  is  only 
by  a  compliance  with  the  statute  that  corporate  existence  can  be  ac- 
quired. Bigelow  v.  Gregory,  73  111.  197. 

1156<7.  SAME — where  subscription  of  capital  stock  essential.  By 
the  filing  and  recording  of  articles  of  incorporation,  a  corporation  is 
created  as  efficient  for  all  purposes  as  if  its  powers  were  conferred  by 
a  special  charter.  Where  the  capital  stock  is  fixed  by  the  articles,  or 
by  the  charter,  it  must  be  all  subscribed  before  the  corporation  will 
have  a  legal  existence.  Temple  v.  Lemmon,  112  111.  51;  Allman  v. 
Hav.,  Rantoul  &  E.  R.  R.,  88  111.  521;  Stoneham  Branch  R.  R.  v. 


AND  EMINENT  DOMAIN.  135 

Gould,  2  Gray,  277;  N.  Bridge  v.  Storey,  6  Pick.  45,  note;  Salem  Mill 
Dam  v.  Ropes,  6  Pick.  23;  Worcester  &  Nashua  R.  R.  \.  Hinds,  8  Gush. 
110;  N.  H.  Cent.  R.  R.  v.  Johnson,  3  N.  H.  390;  8.  &  R.  R.  R.  v.  Cush- 
ing,  45  Me.  124. 

11567i.  SUBSTANTIAL  COMPLIANCE.  A  substantial  compliance 
with  the  statute  is  sufficient  to  make  the  organization  valid.  People 
v.  Stockton  &  F.  R.  R.,  45  Cal.  306:  The  omission^of  jthe  names  of  the 
directors  will  not  be  fatal.  Eakright  v.  L.  &  N.  I.  R.  R.,  13  Ind. 
404.  But  the  articles,  unless  complete  in  substance,  will  not  hold 
subscribers.  Duchess  &  C.  R.  R.  v.  Mabbett,  58  N.  Y.  397;  Monterey 
&  8.  F.  R.  R.  v.  Hildreth,  53  Cal.  153. 

1156i.  CORPORATE  EXISTENCE — who  may  question  it.  Where  a 
company  under  the  act  of  1849  had  taken  all  the  steps  to  be  incorpor- 
ated, except  to  file  the  certificate  of  incorporation  in  the  office  of  the 
secretary  of  state,  it  was  held,  that  while  this  omission  might  sustain 
a  quo  warranto  to  oust  the  corporation  of  its  franchises,  it  did  not 
follow  that  it  was  not  a  corporation  as  to  third  persons.  Baker  v. 
Backus,  32  111.  79;  Stone  v.  Qr.  Western  Oil  Co.,  41  111.  85;  Tarbel  v. 
Page,  24  111.  46;  Hudson  v.  Green  Hill  Sem.,  113  111.  618;  Baker  v.  Neff, 
73  Ind.  68;  Williamson  v.  Kokomo  B.  &  L.  Assoc.,  89  Ind.  389;  Central 
Ag.  Assoc.  v.  Alabama  Co.,  70  Ala.  120. 

(B)  GENERAL  POWERS. 

1157.  BY-LAWS — right  to  establish.  A  railway  company  has 
an  implied  power  to  establish  by-laws;  but  whether  the  power  is  con- 
ferred expressly  or  by  implication,  it  is  limited  to  such  as  are  lawful 
and  reasonable.  Chandler  v.  N.  Cross  R.  R.,  18  111.  190;  K.  &  P.  R.  R. 
v.  Kendall,  31  Me.  470;  Kent  v.  Quicksilver  Mining  Co.,  78  N.  Y.  159, 
178,  182. 

1157a.  SAME  —  as  to  stock  and  voting.  Company  may  make  such 
by-laws  regulating  stock  and  the  manner  of  voting  upon  it,  as  are 
consistent  with  its  charter.  Chandler  v.  N.  Cross  R.  R.,  18  111.  190. 

11576.  SAME  —  binds  members.  A  person,  by  becoming  a  member 
of  a  corporation  submits  himself  to  the  operation  of  all  by-laws  for 
its  government,  and  by  implication,  agrees  to  be  bound  by  them  so  far 
as  they  are  within  the  corporate  authority  to  enact.  People  v.  Board 
of  Trade,  45  111.  112. 

1157c.  SAME — as  to  stranger.  The  by-laws  of  a  corporation  are 
not  evidence  for  it  against  strangers  who  deal  with  it,  unless  they  are 
brought  to  their  knowledge,  and  assented  to  by  them.  Smith  v.  N. 
Car.  R.  R.,  68  N.  C.  107. 

115  Id.  SAME —persona?  liability  by.  In  the  absence  of  legislative 
enactment  or  contract,  a  personal  liability  cannot  be  created  against  a 
stockholder  by  a  by-law  of  the  company.  Kennebeck,  &c.,  R.  R.  v. 
Kendall,  31  Me.  470. 

1157e.  SAME  —  in  consonance  with  nature  and  purpose  of  corpo- 
ration. The  nature  and  purpose  for  which  a  corporation  is  created,  is 
the  controlling  consideration  in  determining  the  validity  of  its  by- 
laws. If  they  are  foreign  to  its  character,  and  a  departure  from  its 
purposes,  they  are  void.  If  otherwise,  and  in  harmony  with  the  gen- 
eral laws,  they  are  valid.  People  v.  Board  of  Trade,  45  111.  112. 

1157/.  As  to  reasonableness  of  by-laws  regulating  conduct  of 
members.  See  Dickenson  v.  Chamber  of  Commerce,  29  VVis.  45;  State 
v.  Chamber  of  Commerce,  20  Wis.  63,  71. 

115 7^.  BY-LAWS  —  on  whom  binding.  Where  the  charter  provides 
that  the  corporate  powers  of  the  company  shall  be  exercised  by  a 
board  of  directors  or  managers,  who  may  adopt  by-laws  for  the  gov- 


136  RAILROADS,  WAREHOUSES, 

eminent  of  the  officers  and  affairs  of  the  company,  a  by-law  adopted 
at  the  first  meeting  of  the  stockholders,  all  of  whom  were  present  and 
participated  therein,  and  who  were  the  only  persons  interested  in  the 
company,  either  as  officers,  managers  or  stockholders,  is  binding,  not- 
withstanding they  may,  in  the  adoption  thereof,  have  designated 
themselves  as  stockholders,  instead  of  managers.  People  v.  Sterling 
Burial  Case,  Mfg.  Co.,  82  111.  457. 

11577i.  SAME — estopped  to  deny  validity.  Where  a  stockholder 
participates  in  the  adoption  of  by-laws,  and  acts,  and  acquires  rights 
under  them,  and  through  his  instrumentality  they  are  held  out  to  the 
public  as  the  laws  of  the  corporation,  and  outside  parties  acquire 
rights  in  the  corporation  on  the  faith  of  the  validity  of  such  by-laws, 
such  stockholder  will  be  estopped  to  deny  their  validity.  Ib. 

11571  KULES  AND  REGULATIONS— showing  ticket  before  entering 
car.  A  railway  company  may  establish  a  rule  requiring  passengers 
to  produce  their  tickets  before  entering  the  cars.  C.,  B.  &  Q.  R.  R.  v. 
Boger,  1  Bradw.  472. 

1157J.  SAME— extra  fare  of  one  having  no  ticket.  Passengers 
neglecting  to  purchase  tickets  before  embarking  on  cars,  may  be 
charged  additional  fare,  if  afforded  proper  facilities  for  getting  tickets. 
If  they  pay  from  station  to  station  without  tickets,  they  may  be  com- 
pelled to  pay  an  extra  charge  at  each  station.  C.,  B.  &  Q.  R.  R.  v. 
Parks,  18  111.  460. 

1157/fc.  SAME—; facilities  for  getting  tickets.  The  company  must 
furnish  proper  facilities  for  procuring  tickets,  if  it  intends  to  charge 
extra  fare  when  tickets  are  not  obtained.  If  a  ticket  is  applied  for 
and  not  furnished,  that  fact  may  be  shown  by  the  station  agent,  and 
his  certificate  should  be  evidence  to  the  conductor  of  such  fact.  St. 
L.,  A.  &  Ch.  R.  R.  v.Dalby,  19  111.  353. 

1157Z.  SAME— liable  for  not  adopting,  &c.  Railway  companies 
must  adopt  proper  rules  for  the  running  of  trains,  and  conform  to 
them,  or  be  responsible  for  all  consequences.  C.,  B.  &  Q.  R.  R.  v. 
George,  19  111.  510. 

1157m.  SAME- — liability  to  employes  for  not  adopting  proper  ones. 
An  employe  entering  the  service  of  company  with  the  knowledge  that 
no  provision  has  been  made  for  protecting  him  from  moving  trains 
about  the  depot  grounds,  will  have  no  cause  of  action  for  injuries  re- 
sulting to  him  by  reason  of  the  neglect  of  the  corporation  to  make 
such  rules  and  regulations  as  prudence  would  require  in  that  respect. 
Haskin  v.  N.  Y.  Cent.  &  Hudson  River  R.  R.,  65  Barb.  129. 

1157w.  SAME— procuring  ticket  before  entering  cars.  Where  a 
railroad  company  carries  passengers  on  freight  trains,  and  in  such 
case,  requires  tickets  to  be  shown  before  entering  the  train,  and  a 
passenger  disregards  the  rule,  he  can  be  expelled,  but  only  at  a  regular 
station.  /.  C.  R.  R.  v.  Sutton,  42  111.  438. 

1157o.  A  passenger  who  knowingly  disregards  a  rule  requiring 
tickets  to  be  purchased  before  taking  passage,  may  be  expelled  at  any 
regular  station,  the  same  as  one  refusing  to  pay  fare.  C.  &  A.  R.  R. 
v.  Flagg,  43,  111.  364;  J.  C.  R.  R.  v.  Sutton,  53  111.  397. 

1157i>.  PASSENGERS— on  what  trains.  A  railway  company  has 
the  right  to  devote  a  portion  of  its  trains  exclusively  to  the  carrying 
of  freight,  and  to  entirely  exclude  passengers  from  the  same.  It  is 
not  required  to  carry  passengers  on  its  freight  trains,  or  freight  on  its 
passenger  trains.  C.  &  A.  R.  R.  v.  Randolph,  53  111.  510. 

1157#.  Where  a  passenger  purchases  a  ticket,  he  only  acquires  the 
right  to  be  carried  according  to  the  custom  of  the  road.  He  has  a 
right  to  go  to  the  place  for  which  his  ticket  calls,  on  any  train  that 
usually  carries  passengers  to  that  place.  Ib. 


AND  EMINENT  DOMAIN.  137 

1157r.  TRAINS  NOT  STOPPING  AT  ALL  STATIONS.  Railway  com- 
panies furnishing  reasonable  means  for  carrying  passengers  to  all 
their  stations,  have  the  right  to  run  trains  that  only  stop  at  designated, 
or  the  principal  stations  on  their  road,  and  it  is  the  duty  of  a  pas- 
senger to  learn  before  getting  on  a  train  whether  it  will  stop'at  all 
stations,  or  the  principal  ones.  Ib. 

1157s.  KULES  AND  REGULATIONS  —  in  respect  to  passengers. 
Whatever  rules  tend  to  the  comfort,  order  and  safety  of  the  passen- 
gers on  a  railroad,  the  company  is  authorized  to  make  and  enforce. 
But  such  rules  must  always  be  reasonable  and  uniform  in  respect  to 
persons.  They  must  not  discriminate  on  account  of  color.  Ch.  & 
N.W.  Ry.  v.  Williams,  55  111.  185. 

1157£.  SAME— ladies'  car.  A  rule  setting  apart  a  car  for  the 
exclusive  use  of  ladies,  and  gentlemen  with  ladies,  is  a  reasonable  one 
and  may  be  enforced.  Ch.  &  N.  W.  Ry.  v.  Williams,  55  111.  185; 
Bass  v.  Ch.  &  N.  W.  Ry.,  36  Wis.  450. 

115  lu.  SAME — colored  passengers.  Under  some  circumstances  it 
might  not  be  an  unreasonable  rule  to  require  colored  persons  to 
occupy  separate  seats  in  a  car  furnished  by  the  company,  equally  as  com- 
fortable and  safe  as  those  furnished  for  other  passengers.  But  in  the 
absence  of  any  reasonable  rule  on  the  subject,  the  company  cannot 
lawfully,  from  caprice,  wantonness  or  prejudice,  exclude  a  colored 
woman  from  the  ladies'  car,  merely  on  account  of  her  color.  Ch.  & 
N.  W.  Ry.  v.  Williams,  55  111.  185. 

1157?\  SAME — as  to  passengers.  A  railway  company  has  the  right 
to  require  of  its  passengers  the  observance  of  all  reasonable  rules,  cal- 
culated to  insure  comfort,  convenience,  good  order  and  behavior,  and  to 
secure  the  safety  of  its  trains  and  the  proper  conduct  of  its  business. 
/.  C.  R.  R.  v.  Whittemore,  43  111.  420. 

1157w;.  SAME— surrender  of  ticket.  A  rule  requiring  passengers  to 
surrender  their  tickets  to  the  conductor  when  called  for,  is  a  reason- 
able one  and  may  be  enforced.  Ib. 

1157*-.  SAME— reasonableness  of.  The  reasonableness  of  a  rule 
adopted  by  a  company  for  the  government  of  its  business,  is  purely  a 
question  of  law.  /.  C.  R.  R.  v.  Whittemore,  43  111.  420,  423. 

1157?/.  SAME — as  to  passengers  on  freight  trains.  It  is  not  an 
unreasonable  rule  to  require  that  all  persons  desiring  to  ride  on  freight 
trains,  shall  procure  tickets  sold  expressly  for  such  trains.  /.  C.  R. 
R.  v.  Nelson,  59  111.  110. 

1158.  A  railway  company  has  the  clear  right  to  make  a  rule  that 
no  one  shall  be  carried  as  a  passenger  on  its  freight  trains.  But  if  it 
is  accustomed  to  carry  passengers  on  such  trains,  it  will  not  be  justi- 
fied in  refusing  to  carry  a  passenger,  or  in  putting  him  off.  /.  C.  R. 
R.  v.  Johnson,  67  111.  312. 

1158a.  It  may  require  that  passengers  procure  tickets  before  riding 
on  freight  trains,  and  conductors  may  expel  from  the  cars,  at  regular 
stations,  such  as  neglect  to  comply  with  the  regulation.  T.,  P.  &  W. 
Ry.  v.  Patterson,  63  111.  304. 

11586.  SAME — ladies'  waiting  room  at  depot.  Where  separate 
waiting  rooms  are  provided  at  a  depot  for  ladies  and  gentlemen,  a 
regulation  that  no  gentleman  without  a  lady  shall  be  admitted  in  the 
ladies'  room,  is  not  only  reasonable,  but  necessary  to  enable  the  com- 
pany to  discharge  its  duty  to  protect  females  at  the  depot  from  vio- 
lence and  insult.  T.,  W.  &  W.  Ry.  v.  Williams,  11  111.  354. 

1158c.  RULES  AND  REGULATIONS — family  ticket.  A  family 
ticket  will  authorize  a  son  residing  with  the  holder  as  a  member  of 
the  family  to  ride  upon  the  road,  although  he  may  be  over  twenty-one 


138  EAILROADS,  WAREHOUSES, 

years  .of  age.  But  if  the  purchaser  was  informed  when  he  bought  the 
ticket  that  a  son  over  that  age  would  not  be  allowed  to  ride"  on  it, 
such  regulation  of  the  company  would  be  binding  on  the  holder  of 
the  ticket,  or  any  person  attempting  to  ride  on  it.  Ch.  &  N.  W.  Ry. 
v.  Chisholm,  Jr.,  79  111.  584. 

1158cZ.  SAME — evidence  of.  The  published  schedule T of  regula- 
tions respecting  family  tickets  are  not  evidence,  unless  notice  thereof 
is  brought  home  to  the  party  to  be  affected.  Ib. 

1158e.  SAME — passengers  on  freight  train.  The  law  imposes  no 
obligation  on  railway  companies  to  carry  passengers  on  freight 
trains,  nor  freight  on  passenger  trains.  It  only  requires  them  to  carry 
both,  leaving  them  to  regulate  the  manner  in  which  it  shall  be  done. 
Arnold  v.  /.  C.  R.  R.,  83  111.  273. 

1158/.  SAME — As  to  servants  and  passengers.  A  railway  corpo- 
ration has  the  right  to  make  reasonable  rules  for  the  conduct  of  its 
employes  and  also  for  the  conduct  of  its  passengers.  C.,  B.  &  Q.  R.  R. 
v.  McLallen,  84  111.  109. 

1158#.  SAME — reasonableness.  Whether  a  rule  be  reasonable  or 
unreasonable,  and  therefore  ultra  vives,  is  a  question  of  law  for  the 
court;  but  whether  such  rules  are  adequate  for  the  safety  of  others, 
and  the  management  of  the  train,  is  a  question  of  fact  for  the  jury. 
C.,  B.  &  Q.  R.  R.  v.  McLallen,  84  111.  109. 

1158ft.  The  reasonableness  of  regulations  of  a  railway  company 
affecting  third  persons,  is  a  mixed  question  of  law  and  fact.  Bass  v. 
Ch.  &  N.  W.  Ry.,  36  Wis.  450. 

11581  SAME  —  witness  may  not  construe.  A  question  asking  a 
witness  whether  under  a  certain  rule  there  would  be  any  objection  to 
doing  a  thing  a  certain  way,  is  improper,  as  calling  on  the  witness  to 
construe  the  rule.  Penn.  Co.  v.  Stcelke,  104  111.  201. 

1158 j.  SAME — preventing  a  person  from  travelling  on  cars.  A 
railway  company  has  no  power  to  adopt  rules  and  regulations  prohib- 
iting decently  behaved  persons  from  travelling  on  its  road,  who  will 
pay  their  fare  and  conform  to  all  reasonable  requirements  for  the 
safety  and  comfort  of  passengers.  C.,  B.  &  Q.  R.  R.  v.  Bryan,  90  111.  126. 

1158ft.  SAME  —  manner  of  entering  car.  Company  has  the  right 
to  make  all  reasonable  rules  respecting  the  time,  manner  and  place  of 
entering  cars;  and  these  rules  when  known  to  the  passenger,  he  is 
bound  to  conform  to,  or  he  cannot  recover  for  an  injury  sustained 
thereby.  26  Iowa,  124. 

1159.  In  an  action  for  an  injury  from  a  collision,  it  is  not  sufficient 
for  the  company  to  show  that  the  plaintiff  was  at  the  time  acting  in 
disobedience  of  a  proper  order  to  secure  his  safety.    It  should  further 
appear  that  the  injury  was  caused  by  such  disobedience.    JL.  &  Upper 
Miss.  R.  R.  v.  Montgomery,  1  Ind.  474. 

1160.  TICKET  —  rule  requiring  passengers  to  show,  and  also  to 
surrender  ticket.    See  jB.  &  O.  R.  R.  v.Blocher,  27  Md.  277;  Davis  v. 
K.  C.,  St.  J.  &  C.  B.  R.  R.,  53  Mo.  317;  Northern  R.  R.  v.  Page,  22 
Barb.  130. 

1161.  A  regulation  requiring  passengers  either  to  present  evidence 
to  a  conductor  of  a  right  to  a  seat,  when  reasonably  required  so  to  do, 
or  to  pay  fare,  is  reasonable;  and  for  non-compliance  therewith,  a  pas- 
senger may  be  lawfully  put  off  the  train.    Townsend  v.  N.  Y.  Cent.  & 
H.  River  R.  R.,  56  N.  Y.  295. 

1162.  To  TAKE  AND  NEGOTIATE  NOTES.    A  railway  company  has 
the  inherent  power  to  take  and  negotiate  promisory  notes  in  the 
ordinary  course  of  business.    Frye  v.  Tucker,  24  111.  180;  Goodrich  v. 
Reynolds,  31  111.  490;  Foy  v.  Blackstone,  31  111.  538. 


AND  EMINENT  DOMAIN.  139 

1163.  POWER  TO  LEASE,  OR  TAKE  LEASE.     Power  to  a  railway 
company  to  lease  its  road  to  another  corporation,  or  to  receive  from 
another  corporation  a  lease  of  the  road  of  the  latter,  is  conferred 
only  by  special  authorization  in  charter  or  other  legislative  action. 
Such  power  is  not  among  the  ordinary  powers  of  railway  companies. 
Penn.  R.  R.  v.  St.  L.  &c.  R.  R.,  118  U.  S.  290. 

1164.  A  railway  company  cannot  transfer  or  lease  its  lines,  unless 
authorized  by  statute.    Troy  &  Boston  R.  R.  v.  Boston  &  Hoosac 
Tunnel  &  Western  Ry.,  86  N.  Y.  107;   Atty.  Genl  v.  Niagara  Falls 
Bridge  Co.,  20  U.  Canada,  34;  Abbott  v.  J.  G.  &  K.  R.  R.,  80  N.  Y.  27. 
See  III.  Mid.  Ry.  v.  People,  84  111.  426. . 

1165.  Without  enabling  legislation,  a  railroad  company  possesses 
no  power  to  lease  its  road  to  a  foreign  corporation,  and  surrender  its 
road  and  franchises  into  its  control.    Archer  v.  T.  H.  &  Ind.  R.  R., 
102  111.  493. 

(O  EVIDENCE    OF   INCORPORATION. 

1166.  BOOKS — to  show  exercise  of  corporate  acts.    Where  certain 
steps  are  required  to  be  taken  before  a  corporation  has  existence, 
such  as  the  opening  of  books,  subscription  of  the  capital  stock  and  the 
choice  of  directors,  the  corporation  books  showing  the  election  of 
officers,  is  prima  facie  evidence  1  o  show  that  the  prerequisites  of  the 
statute  have  been  complied  with,  and  that  the  corporation  has  an 
existence.    Ryder  v.  A.  &  S.  R.  R.,  13  111.  516,  523. 

1167.  The  books  of  a  railway  company  showing  its  organization 
are  competent  evidence  for  that  purpose.    Peake  v.  Wabash  R.  R., 
18  111.  88. 

1168.  JUDICIAL  NOTICE.    This  court  cannot  take  judicial  notice 
of  the  existence  of  a  railroad  in  a  county.    Log.,  Peo.  &  B.  R.  R.  v. 
Caldwell,  38  111.  280.    See  Danv.  &  White  Lick  PL  R.  Co.  v.  State, 
16  Ind.  456. 

1169.  USER  TINDER  GENERAL  LAW.    To  show  an  incorporation 
under  a  general  law,  except  as  against  the  state,  it  is  sufficient  to 
show  a  twer.by  a  professed  organization  under  the  law.    Mitchell  v. 
Deeds,  49  111.  416;  Abbot's  Trial  Evid.,  30. 

1170.  ADMISSION  OF  CORPORATE  EXISTENCE  by  dealing  with  the 
body  as  a  corporation.    Mitchell  v.  Deeds,  49  111.,  416;  Miami  Powder 
Co.  v.  Hotchkiss,  17  Bradw.  622;  Brown  v.  Scottish  A.  M.  Co.,  110  111. 
235;  Hudson  v.  Green  Hill  Seminary,  113  111.  618. 

1171.  THE  ARTICLES  OF  ASSOCIATION  of  a  corporation  certified 
by  the  secretary  of  state,  are  prima  facie  evidence  of  the  fact  that  the 
full  amount  of  the  capital  stock  required  by  the  articles  has  been  sub- 
scribed.   Jewell  v.  Rock  River  Paper  Co.,  101  111.  57. 

1171a.  PROOF  OF  INCORPORATION — organization  under  general 
law.  The  existence  or  the  formation  of  the  corporation  under  the 
general  law,  may  be  proved,  unless  the  law  otherwise  provides,  by 
producing  the  certificate  of  organization  which  the  law  requires  to  be 
filed,  with  proof  of  its  filing.  Chamberlain  v.  Huguenot  Manf.  Co., 
118  Mass.  532;  Leonardsville  Bank  v.  Willard,  25  N.  Y.  574;  Augur, 
&c.  v.  Whittier,  117  Mass.  451;  Hawes  v.  Anglo  Saxon  Petroleum  Co., 
101  Mass.  385;  Priest  v.  Essex  Hat  Co.,  115  Mass.  380;  see  also  Moke- 
lumne  v.  Woodbury,  14  Cal.  424;  New  Eel  River  Drain  Assoc.  v. 
DurUn,  30  Ind.  173. 

11716.  The  statute  makes  a  certified  copy  of  the  articles  evidence 
equally  with  the  original.  In  the  absence  of  such  a  provision  the  orig- 
inal would  be  the  best  evidence.  Jackson  v.  Leggett,  7  Wend.  377; 
Evans  v.  Southern  Turnpike,  18  Ind.  101. 


140  BAILROADS,  WAREHOUSES, 

1171c.  Where  the  corporate  existence  of  the  plaintiff  is  denied,  the 
original  articles  of  association,  properly  recorded,  may  be  read  in 
evidence,  without  a  certificate  of  the  clerk  that  it  is  a  true  copy.  For- 
tin  v.  U.  8.  Wind  Engine  &  Pump  Co.,  48  111.  451. 

1172.  LIMIT  OF  CHARTER — RENEWAL.    §5.    No  such  cor- 
corporation  shall  be  formed  to  continue  more  than  fifty  years 
in  the  first  instance,  but  such  corporation  may  be  renewed 
from  time  to  time,  in  such  manner  as  may  be  provided  by 
law,  for  periods  not  longer  than  fifty  years:     Provided,  that 
three-fourths  of  the  votes  cast  at  any  regular  election  for 
that  purpose  shall  be  in  favor  of  such  renewal,  and  those  de- 
siring a  renewal  shall  purchase  the  stock  of  those  opposed 
thereto  at  its  current  value.     [B.  S.  1887,  p.  1001,  §  5;  S.  & 
C.,  p.  1908,  §  5;  Cothran,  p.  1137,  §  5.] 

1173.  BY-LAWS  RECORDED.     §  6.     A  copy  of  the  by-laws 
of  the  corporation,  duly  certified,  shall  be  recorded  as  pro- 
vided for  the  recording  of  the  articles  of  association  in  section 
2  of  this  act;  and  all  amendments  and  additions  thereto,  duly 
certified,  shall  also  be  recorded  as  herein  provided,  within 
ninety  days  after  the  adoption  thereof.     [B.  S.  1887,  p.  1001, 
§  6;  S.  &  C.,  p.  1909,  §  6;  Cothran,  p.  1137,  §  6.      Cited  in 
Allman  v.  Havan.  <&c.  R.  R.,  88  111.  521.] 

1174.  PUBLIC  OFFICE  IN  THIS  STATE — books  of  stock — 
inspection  of.     §  7.     Every  such  corporation  organized  under 
the  provisions  of  this  act  shall  have  and  maintain  a  public 
office  or  place  in  this  state  for  the  transaction  of  its  business, 
where  transfers  of  all  its  stock  shall  be  made,  and  in  which 
shall  be  kept  for  public  inspection,  books,  wherein  shall  be 
recorded  the  amount  of  capital  stock  subscribed  and  by  whom, 
the  names  of  the  owners  of  its  stock,  the  number  of  shares 
held  by  each  person,  and  the  number  by  which  each  of  said 
shares  is  respectively  designated,  and  the  amounts  owned  by 
them  respectively,  the  amount  of  stock  paid  in,  and  by  whom, 
the  transfers  of  said  stock,  the  amount  of  its  assets  and  lia- 
bilities, and  the  names  and  places  of  residence  of  all  its  offi- 
cers.    [B.  S.  1887,  p.  1001,  §  7;  S.  &  C.,  p.  1909,  §  7;  Cothran, 
P- 1137,  §7.] 

1175.  DIRECTORS — THEIR  ELECTION  AND  CLASSIFICATION- 
VACANCY.     §  8.     All  the  corporate  powers  of  every  such  cor- 
poration shall  be  vested  in  and  be  exercised  by  a  board  of 
directors,  who  shall  be  stockholders  of  the  corporation,  and 
shall  be  elected  at  the  annual  meetings  of  stockholders  at  the 
public  office  of  such  corporation  within  this  state.     The  num- 
ber of  such  directors,  the  manner  of  their  election,  and  the 
mode  of  filling  vacancies,  shall  be  specified  in  the  by-laws, 
and  shall  not  be  changed  except  at  the  annual  meetings  of  the 
stockholders.    The  first  board  of  directors  shall  classify  them- 
selves by  lot  in  such  manner  that  there  shall  be,  as  nearly  as 


AND  EMINENT  DOMAIN.  141 

practicable,  three  directors  in  each  class.  Those  belonging 
to  the  first  class  shall  go  out  of  office  at  the  end  of  one  year, 
those  of  the  second  class  at  the  end  of  two  years,  and  in  like 
manner  those  of  each  class  shall  go  out  of  office  at  the  expi- 
ration of  a  number  of  years  corresponding  to  the  number  of 
his  class ;  and  all  vacancies  occurring  by  reason  of  expiration 
of  term  shall  be  filled  by  election  for  a  terni  of  years  equal 
to  the  number  of  classes.  [E.  S.  1887,  p.  1001,  §  8;  S.  &  C., 
p.  1909,  §  8;  Cothran,  p.  1138,  §  8.  Post  1187,  1425.] 

1176.  DIRECTORS — trustees.    Directors  of  a  railway  corporation 
are  trustees  of  the  funds  and  other  property  of  the  corporation  for 
the  stockholders.     Cheeney  v.  L.,  B.  &  M.  Ry.,  68  111.  570;  Holder  v. 
L.,  B.  &  M.  Ry.,  71  111.  106;  Gil,  Clinton  &  Spring/.  R.  R.  v.  Kelley,  77 
111.  426;  Peterson  v.  III.  Land  &  Loan  Co.,  6  Bradw.  257;  Blake  v.  Buf- 
falo Creek  R.  R.,  56  N.  Y.  485. 

1176a.  SAME— interest  in  contracts  with  company.  It  is  illegal 
for  directors  of  a  railway  company  to  become  members  of  a  company 
contracting  to  build  the  road,  so  as  to  share  in  the  profits.  &.,  C.  & 
Sp.  R.  R  v.  Kelley,  77  111.  426.  See  European  &  N.  Am.  R.  R.  v.  Poor, 
59  Me.  277. 

1177.  COMPENSATION.    The  president  and  directors  of  a  railway 
company  are  not  entitled  to  any  compensation  for  their  ordinary  ser- 
vices as  such  officers,  unless  the  amount  is  fixed  in  the  by-laws,  or  by 
resolution  spread  upon  the  record,  before  the  services  are  rendered. 
Cheeney  v.  L,,  B.  &  M.  Ry.,  68  111.  570;  Am.  Cent.  R.  R.  v.  Miles,  52  111. 
174;  Merrick  v.  Peru  Coal  Co.,  61  111.  472;  R.,  R.  L  &  St.  L.  R.  R.  v. 
Sage,  65  111.  328;  Holder  v.  L.,  B.  &  M.  Ry.,  71  111.  106;  Gridley  v.  £., 
B.  &  M.  Ry.,  71  111.  200;  Hall  v.  Vt.  &  Mass.  R.  R.,  28  Yt.  401;  Bar- 
stow  v.  City  R.  R.,  42  Cal.  465. 

1177a.  It  is  not  sufficient  to  prove  that  the  matter  of  allowing 
compensation  was  talked  over  by  the  board,  where  the  record  of  their 
proceedings  fails  to  show  any  allowance.  R.,  R.  I.  &  St.  L.  R.  R.  v. 
Sage,  65  111.  328. 

11776.  Where  the  by-laws  of  a  private  corporation  provide  that  the 
officers  shall  receive  such  compensation  for  their  services  as  shall  be 
determined  at  the  annual  meeting  of  the  stockholders,  or  at  any 
special  meeting  called  for  that  purpose,  and  none  are  ever  so  fixed,  an 
officer  performing  the  ordinary  duties  and  services  pertaining  to  his 
office,  will  not  be  entitled  to  recover  for  such  services,  in  the  absence 
of  any  agreement  to  pay  him  for  the  same.  III.  Linen  Co.  v.  Hough, 
91  111.  63. 

1178.  COMPENSATION— for  services  not  incident  to  office.    Direct- 
ors employed  to  perform  duties  or  services  disconnected  with  their 
office,  may  recover  or  receive  compensation  for  such  services.    Holder 
v.  L.,  B.  &  M.  Ry.,  71  111.  106;  Gridley  v.  L.,  B.  &  M.  Ry.,11  111.  200; 
III.  Linen  Co.  v.  Hough,  91  111.  63. 

.  A  director  appointed  to  perform  duties  not  pertaining  to 
his  office,  such  as  to  solicit  the  subscription  of  stock,  or  to  procure  the 
right  of  way,  may  recover  for  such  services  when  rendered;  but  he 
cannot,recover  for  services  performed  as  a  member  of  the  executive 
committee,  nor  in  making  efforts  to  contract  for  the  construction  of 
the  road,  including  time  and  travel,  as  these  are  a  part  of  his  duties  as 
director.  Cheeney  v.  L.,  B.  &  M.  Ry.,  68  111.  570. 

11786.  If  the  finance  committee  of  a  railway  company  audits  an 
account  of  the  president  for  ordinary  services,  and  draws  an  order  for 


142  EAILROADS,  WAREHOUSES, 

its  payment,  where  no  compensation  has  been  provided  before  the 
services  were  rendered,  it  will  be  illegal,  and  no  recovery  can  be  had. 
Gridley  v.  L.,  B.  &  M.  Ry.,  71  111.  200. 

1179.  POWERS  OF  DIRECTORS.    Charter  directors  can  do  such  acts 
only  as  are  necessary  to  set  the  association  in  motion  as  a  corpora- 
tion; they  cannot  make  contracts,  or  incur  liabilities  for  the  construc- 
tion of  the  road.    Allman  v.  Hav.,  R.  &  E.  R.  R.,  88  111.  521. 

1179a.  SAME — increase  of  capital.  A  special  charter  which  in 
terms  vested  all  corporate  powers  in  the  directors,  held,  not  to  author- 
ize them  to  increase  the  capital  stock  without  assent  of  the  stockhold- 
ers. Ry.  Co.  v.  Allerton,  85  U.  S.  233. 

1180.  ELECTION  OF   DIRECTORS— by-laws.    A  railway  company 
may  make  such  by-laws  regulating  stock  and  the  manner  of  voting 
upon  it  as  are  consistent  with  its  charter.    Chandler  v.  N.  Cross  R.  R., 
18  111.  190. 

1180a.  SAME— freedom  in  voting.  One  stockholder  has  no  right 
to  direct  how  the  votes  of  another  shall  be  cast,  nor  for  whom.  Ryder 
v.  A.  &  S.  R.  R.,  13  111.  516. 

1181.  SAME— proxy  by  city.    The  city  of  Alton  and  non-residents 
had  a  right  to  become  stockholders  in  this  company;  and  the  city 
might  give  its  proxy  to  any  one  it  chose.    Ib. 

1182.  STOCKHOLDERS    MEETINGS  —  how    called    between 
annual  meetings.     §  9.     A  meeting  may  be  called  at  any  time 
during  the  interval  between  such  annual  meetings,  by  the 
directors,  or  by  the  stockholders  owning  not  less  than  one- 
fourth  of  the  stock,  by  giving  thirty  days'  public  notice  of  the 
time  and  place  of  such  meeting  in  some  newspaper  published 
in  each  county  through  or  into  which  the  said  railway  shall 
run,  or  be  intended  to  run,  provided  there  be  a  newspaper 
published  in  each  of  the  counties  aforesaid;  and  if,  at  any 
such  special  meeting  so  called,  a  majority  in  value  of  the 
stockholders  equal  to  two-thirds  of  the  stock  of  such  corpora- 
tion, shall  not  be  represented  in  person  or  by  proxy,  such 
meeting  shall  be  adjourned  from  day  to  day,  not  exceeding 
three  days,  without  transacting  any  business;  and  if,  within 
said  three  days,  two-thirds  in  value  of  such  stock  shall  not  be 
represented   at   such   meeting,   then  the   meeting   shall  be 
adjourned,  and  a  new  call  may  be  given  and  notified  as  here- 
inbefore provided.     [E.  S.  1887,  p.  1002,  §  9;  S.  &  C.,  p.  1909, 
§  9;  Cothran,  p.  1138,  §  9.     Post  1206.] 

1183.  ANNUAL  STOCKHOLDERS'  MEETING — report  or  state- 
ment of  corporate  affairs.     §   10.     At  the   regular  annual 
meeting   of  the   stockholders  of  any  corporation   organized 
under   the  provisions  of  this   act,   it  shall  be  the   duty   of 
the  president  and  directors  to  exhibit  a  full,  distinct  and  accu- 
rate statement  of  the  affairs  of  the  said  corporation;  and  at 
any  meeting  of  the  stockholders,  or  a  majority  of  those  pres- 
ent (in  person  or  by  proxy),  may  require  similar  statements 
from  the  president  and  directors,  whose  duty  it  shall  be  to 
furnish  such  statements  when  required  in  manner  aforesaid. 


AND  EMINENT  DOMAIN.  143 

1184.  POWERS  OF  STOCKHOLDERS — to  fix  amount  of  loans 
and  interest.     And  at  all  general  meetings  of  the  stockhold- 
ers, a  majority  in  value  of  the  stockholders  of  any  such  cor- 
poration may  fix  the  rates  of  interest  which  shall  be  paid  by 
the  corporation  for  loans  for  the  construction  of  such  railway 
and  its  appendages,  and  the  amount  of  such  loans. 

1185.  SAME — removal  of  officers.     At  any  special  meet- 
ing, by  a  two-thirds  vote  in  value  of  all  the  stock,  such  stock- 
holders may  remove  any  president,  director  or  other  officer  of 
such  corporation,  and  elect  others  instead  of  those  so  removed. 

1186.  STOCKHOLDERS — right  to  examine  books,  &c.    All 
stockholders  shall,  at  all  reasonable  hours,  have  access  to  and 
may  examine  all  the  books,  records  and  papers  of  such  cor- 
poration.    [E.  S.  1887,  p.  1002,  §  10;  S.  &  C.,  p.  1910,  §  10; 
Cothran,  p.  1138,  §10.] 

1187.  ELECTION  OF  DIRECTORS — on  failure  to  elect   at 
proper  time.     §  11.     In  case  it  shall  happen,  at  any  time, 
that  an  election  of  directors  shall  not  be  made  on  the  day 
designated  by  the  by-laws  of  such  corporation  for  that  pur- 
pose, the  corporation,  for  such  cause,  shall  not  be  dissolved, 
if  within  ninety  days  thereafter  the  stockholders  shall  meet 
and  hold  an  election  for  directors  in  such  manner  as  shall  be 
provided  by   the  by-laws   of   such  corporation:     Provided, 
that  it  shall  require  a  majority  in  value  of  the  stock  of  such 
corporation  to  elect  any  member  of  such  board  of  directors, 
and  a  majority  of  such  board  of  directors  shall  be  citizens 
and  residents  of  this  state.    [Const.,  art.  11,  §  H;  R-  S.  1887, 
p.  1002,  §  11;  S.  &  C.,  p.  1910,  §  11:  Cothran,  p.  1139,  §  11.] 

1187a.  DIRECTORS — constitutional  provision  as  to  residence  of, 
construed.  The  constitutional  provision  (art  11,  §  11)  that  "a  majority 
of  the  directors  of  any  railroad  corporation,  now  incorporated,  or* 
hereafter  to  be  incorporated  by  the  laws  of  this  state,  shall  be  citi- 
zens and  residents  of  this  state,"  has  no  application  to  a  railway 
corporation  formed  prior  to  the  adoption  of  the  constitution  by 
the  consolidation  of  a  railway  company  of  this  state  with  one  of 
another  state,  by  the  consent  of  each  of  such  states.  Such  a  cor- 
poration exists  under  the  laws  of  the  two  states  and  cannot  be  said  to 
be  incorporated  solely  under  the  laws  of  this  state.  0.  &  M.  Ry.  v. 
People,  —  111.  — .  Filed  Jan.  18,  1888. 

1188.  OFFICERS — their  duties.     §  12.     There  shall  be  a 
president  of    such  corporation,  who  shall  be  chosen  by  and 
from   the  board  of  directors,  and   such  other   subordinate 
officers  as  such  corporation,  by  its  by-laws,  may  designate, 
who  may  be  elected  or  appointed,  and  shall  perform  such 
duties  and  be  required  to  give  such  security  for  the  faith- 
ful performance  thereof  as  such  corporation,  by  its  by-laws, 
shall  require:     Provided,  that  it  shall  require  a  majority  of 
the  directors  to  elect  or  appoint  any  officer.     [B.  S.  1887,  p. 
1002,  §  12;  S.  &  C.,  p.  1910,  §  12;  Cothran,  p.  1139,  §  12.] 


144  EAILEOADS,  WAEEHOUSES, 

1189.  PRESIDENT.    The  president  of  a  corporation  may  perform 
all  acts  which  are  incident  to  the  execution  of  the  trust  reposed  in 
him,  such  as  custom  or  necessity  has  imposed  upon  the  office,  and  this 
without  express  authority.    Mitchell  v.  Deeds,  49  111.  416. 

1190.  POWER  OF  OFFICERS  AND  AGENT.     A  corporation,  unless 
otherwise  provided  by  its    charter,  may   by  resolution,   or  by-law, 
appoint   any  person  agent  to  dispose  of  its  property  or  negotiable 
securities.      No  officer  of  the  corporation  has  such  exclusive  power, 
unless  given  by  the  charter.    J6. 

1191.  POWER  OF  PRESIDENT — to  employ  counsel.    Where  the  by- 
laws of  a  corporation  make  it  the  duty  of  the  president  to  exercise 
a  general  supervision  over  its  entire  business,  and  provide  that  its 
property  shall  be  under  his  control,  and  as  such  president  for  several 
years  before  he  had  acted  as  its  attorney,  this  will  be  evidence  of  his 
authority  to  employ  an  attorney.     Wetherbee  v.  Fitch,  117  111.  67. 

1191a.  SUPERINTENDENT.  The  general  superintendent  may,  in 
the  exercise  of  his  power  as  such,  bind  the  company  for  the  dis- 
charge of  liabilities  assumed  by  a  station  agent  towards  an  injured 
employe.  T.  W.  &  W.  Ry.  v.  Rodrigues,  47  111.  188. 

11916.  STATION  AGENT.  Where  a  railroad  station  agent  engages 
a  surgeon  to  attend  an  employe  injured  in  the  service  of  the  company, 
although  the  act  is  unauthorized,  yet  the  company  will  be  liable,  if, 
upon  due  notice  given  to  the  general  superintendent,  the  act  is  not 
repudiated.  T.  W.  &  W.  Ry.  v.  Prince,  50  111.  26;  T.  W.  &  W.  Ry.  v. 
Rodrigues,  47  111.  188.  See  also  Ind.  &  St.  L.  R.  R.  v.  Morris,  67  111. 
295.  Admissions  of  agent  when  binding  on  company.  C.  B.  &  Q. 
R.  R.  v.  Coleman,  18  111.  297. 

1192.  PAYMENT  OF  SUBSCRIPTIONS  TO  CAPITAL  STOCK— 
forfeiture  of  payment.  §  13.  The  directors  of  such  corpor- 
ation may  require  the  subscribers  to  the  capital  stock  of  such 
corporation  to  pay  the  amount  by  them  respectively  sub- 
scribed, in  such  manner  and  in  such  installments  as  they  may 
deem  proper.  If  any  stockholder  shall  neglect  to  pay  any 
installment  as  required  by  a  resolution  or  order  of  such  board 
of  directors,  the  said  board  shall  be  authorized  to  declare 
such  stock  and  all  previous  payments  thereon  forfeited  for 
the  use  of  the  corporation;  but  the  said  board  of  directors 
shall  not  declare  such  stock  so  forfeited  until  they  shall  have 
caused  a  notice  in  writing  to  be  served  on  such  stockholder 
personally,  or  by  depositing  the  same  in  a  postoffice,  properly 
directed  to  the  postoffice  address  of  such  stockholder,  or  if  he 
.be  dead,  to  his  legal  representatives,  with  necessary  postage  for 
its  transmittal  properly  prepaid,  stating  therein  that  in  accord- 
ance with  such  resolution,  or  order,  he  is  requested  to  make 
such  payment,  at  a  time  and  place  and  in  the  manner  to  be 
specified  in  such  notice,  and  that  if  he  fails  to  make  the  same 
in  the  manner  requested,  his  stock  and  all  previous  payments 
thereon  will  be  forfeited  for  the  use  of  such  corporation;  and 
thereafter  such  corporation,  should  default  in  payment  be 
made,  may  sell  the  same  and  issue  new  certificates  of  stock 
therefor:  Provided,  that  the  notice  as  aforesaid  shall  be 
personally  served  or  duly  deposited,  as  above  required,  at 


AND  EMINENT  DOMAIN.  145 

least  sixty  days  previous  to  the  day  on  which  such  payment 
is  required  to  be  made.  [R.  S.  1887,  p.  1002,  §  13;  S.  &  0., 
p.  1910,  §  13;  Cothran,  p.  1139,  §  13.] 

RELEASE  OF  SUBSCRIPTION. 

1192a.  ALTERATION  OF  CHARTER— authorizing  consolidation. 
An  amendment  of  the  charter  authorizing  the  consolidation  of  the 
road  to  be  built,  with  any  other  intersecting  road  and  there  terminat- 
ing the  same,  is  not  such  an  alteration  of  the  original  project  as  to 
excuse  the  payment  of  a  subscription  for  stock.  Sprague  v.  HI.  River 
R.  R.,  19  111.  174. 

11926.  AD  act  of  incorporation  may  be  amended,  and  if  the  amend- 
ment is  accepted  by  the  directors,  the  stockholders  under  the  original 
act,  unless  otherwise  stated,  will  be  held  liable.  III.  River  R.  R.  v. 
Zimmer,  20  111.  654. 

1192c.  It  is  no  defense  to  an  action  to  collect  an  installment  of  a 
subscription,  that  the  company  has  accepted  an  amendment  to  its 
charter  after  the  defendant  had  subscribed,  authorizing  it  to  extend 
its  road,  and  otherwise  to  assume  new  and  increased  responsibilities. 
Rice  v.  R.  I.  &  Alton  R.  R.,  21  111.  93;  Hays  v.  0.  O.  &  F.  R.  V.R.  R., 
61  111.  424. 

1192<2.  It  is  no  defense  that  the  charter  has  been  so  changed  as  to 
authorize  the  company  to  purchase  stock  in  other  railroad  companies, 
even  though  the  terminus  of  the  road  is  thereby  changed.  T.  H.  & 
Alton  R.  R.  v.  Earp,  21  111.  291. 

1192e.  MATERIAL  CHANGE  IN  ENTERPRISE— releases  subscribers. 
Where  a  charter  to  build  a  railroad  across  the  state  as  a  continuous 
project  under  one  management,  with  a  common  interest,  is,  after  sub- 
scription, so  amended  as  to  divide  the  project  into  three  parts,  to  be 
under  separate  control,  and  no  proper  acceptance  of  the  change  of  the 
charter  is  manifested,  subscribers  to  the  stock  will  thereby  be  released. 
Fulton  Co.  v.  Miss.  &  Wab.  R.  R.,  21  111.  338,  370.  See  Ross  v.  C., 
B.  &Q.  R.R.,11I\1.  127. 

1192/.  A  subscriber  who  agrees  to  be  subject  to  the  rules  and 
regulations  of  the  directors  which  they  may  adopt,  cannot  avoid 
payment,  because  the  charter  has  been  amended,  reducing  the  number 
of  days'  notice  to  be  given  of  calls,  if  the  amendment  of  the  charter  has 
been  accepted.  III.  River  R.  R.  v.  Seers.  27  111.  185. 

1192^.  A  subscriber  will  be  liable  on  his  subscription,  although 
the  legislature  may  have  authorized,  and  the  directors  may  have 
adopted  a  change  of  route  from  that  originally  fixed,  provided  the 
change  does  not  make  an  improvement  of  a  different  character,  and 
his  interest  is  not  materially  affected  by  the  alteration.  Banet  v. 
Alton  &  Sang.  R.  R.,  13  111.  504,  511. 

11927i.  A  subscription  to  stock  may  be  collected,  although  amend- 
atory acts  have  been  subsequently  passed,  affecting  the  original  char- 
ter, by  extending  its  powers.  P.  &  0.  R.  R.  v.  Siting,  17  111.  429. 

1192t.  INJUNCTION — of  collection  of  subscription.  If  a  railway 
company  ceases  to  prosecute  work,  attempts  to  misapply  its  means,  or 
attempts  any  radical  change  in  the  character  of  the  enterprise,  it  may 
be  enjoined  from  collecting  the  obligations  given  to  support  the  origi- 
nal undertaking.  111.  Grand  Trunk  R.  R.  v.  Cook,  29  111.  237. 

1192  j.    When  subscriber  who  is  also  a  director  is  estopped  by  his 
acts  from  alleging  that  the  corporation  has  ceased  to  be  what  it  was 
when  he  subscribed.    Ross  v.  C.,  B.  &  Q.  R.  R.,  77  111.  127. 
—11 


146  KAILROADS,  WAREHOUSES, 

1192&.  Fraud  as  a  defense  to  a  suit  on  a  subscription.  Hays  \.  Ot., 
Os.  &  Fox  River  Valley  R.  R.,  61  111.  422.  Failure  of  consideration. 
0.  O.  &  F.  R.  V.R.R.  v.  Slack,  79  111.  262.  Mismanagement  of  cor- 
porate affairs.  CTietlain  v.  Repub.  Life  Ins.  Co.,  86  111.  220. 

1193.  STOCKHOLDER — who  is  one.    An  agreement  to  subscribe  a 
certain  amount  of  stock  when  books  shall  be  opened,  does  not  make 
the  party  a  stockholder  and  as  such  liable  for  calls.    Thrasher  v.  Pike 
Co.  R.  R.,  25  111.  393,  405. 

1194.  SUBSCRIPTION — must  be  to  corporation  seeking  to  enforce. 
One  corporation  cannot  recover  on  subscriptions  made  to  another, 
however  identical  the  object  sought  by  the  two  companies,  or  the  par- 
ties composing  them.    76. 

1195.  EELEASE  or  —  void  as  to  creditors.    As  against  creditors, 
the  release  or  surrender  of  the  obligation  of  a  subscriber  of  stock,  by 
the  directors,  is  void .     Union  Mutual  Life  Ins.  Co.  v.  Frear  Stone 
Manfg.  Co.,  97  111.  537,  549;  Upton  v.  Tribilcock,  1  Otto,  45;  Sawyer  v. 
Hoag,  17  Wall.  610:  Burke  v.  Smith,  16  Wall.  390;  New  Albany  v. 
Burke,  11  Wall.  96;  Zirkel  v.  Joliet  Opera  House,  79  111.  334;  Melvin  v. 
Lamar  Ins.  Co.,  80  111.  446.  Release  as  against  other  stockholders.   See 
Chandler  v.  Brown,  77  111.  333. 

1196.  Any  device  by  which  members  of  a  corporation  seek  to  avoid 
liability  which  the  law  imposes  on  them,  is  void  as  to  creditors. 
Union  Mut.  L.  Ins.  Co.  v.  Frear  Stone  Manfg.  Co.,  97  111.  537. 

1197.  CAPITAL  STOCK  —  trust  fund  for  creditors  —  release  of  sub- 
scriber.   The  capital  stock  subscribed  is  a  trust  fund  for  creditors 
which  the  directors  cannot  give  away  to  their  prejudice.    Any  agree- 
ment releasing  stockholders  from  payment  of  their  subscriptions,  is 
void.    76.    Putnam  v.  New  Albany,  4  Biss.  365. 

1198.  CAPITAL  STOCK  —  must  be  all  subscribed  before  any  sub- 
scription is  collectable.    Until  the  whole  amount  of  the  capital  stock 
fixed  has  been  subscribed,  the  corporation  has  no  existence,  and  the 
directors  cannot,  make  any  calls,  or  assessments  on  the  shares  of  those 
who  have  subscribed.    Allman  v.  Hav.,  Rantoul  &  Eastern  R.  R.,  88 
111.  521;  Temple  v.  Lemon,  112  111.51.    See  cases  ante  1156^. 

1199.  WHEN  STRICT  COMPLIANCE  REQUIRED  —  rights  depending 
on.    In  actions  on  contracts,  like  subscriptions  for  stock,  where  the 
very  consideration  is  the  legal  organization  of  a  corporation  having  a 
right  to  existence,  the  inquiry  may  extend  to  the  due  compliance  with 
all  of  the  requirements  of  the  law.    Abbott's  Trial  Evid.  19;  Railway 
Co.  v.  Allerton,  18  Wall.  233;  1  Morawetz  on  Corporations,  §§  29,  137, 
408;  Bray  v.  Farwell,  81  N.  Y.  607;  Peoria,  &c.,  R.  R.  v.  Preston,  35 
Iowa  118,  121;  Hoagland  v.  Cinn.  &c.,  R.  R.,  18  Ind.  452;  Selma,  cfcc,. 
R.  R.  v.  Anderson,  51  Miss.  829;  Swartwout  v.  Mich.  Air  Line  R.  R., 
24  Mich.  390;  Santa  Cruz  R.  R.  v.  Schwartz,  53  Cal.  106. 

1200.  STOCK — personalty  —  transfers  of— purchase  of 
prohibited — use  of  corporate  funds.  §  14.  The  stock  of 
such  corporation  shall  be  deemed  personal  estate,  and  shall 
be  transferable  in  the  manner  prescribed  by  the  by-laws  of 
such  corporation.  But  no  shares  shall  be  transferable  until 
all  previous  calls  thereon  shall  have  been  paid;  and  it  shall 
not  be  lawful  for  such  corporation  to  use  any  of  the  funds 
thereof  in  the  purchase  of  its  own  stock,  or  that  of  any  other 
corporation,  or  to  loan  any  of  its  funds  to  any  director  or 
other  officer  thereof,  or  to  permit  them  or  any  of  them  to  use 
the  same  for  other  than  the  legitimate  purposes  of  such  cor- 


AND  EMINENT  DOMAIN.  147 

poration.     [E.  S.  1887,  p.  1003,  §  14;  S.  &  C.,  p.  1911,  §  14: 
Cothran,  p.  1139,  §  14.] 

1200a.  PERSONAL  ESTATE.  Statute  making  stock  personal  prop- 
erty is  but  declaratory  of  the  common  law.  Mohawk,  &e.  R.  R.  v. 
Clute,  4  Paige,  384,  393;  Hutchins  v.  State  Sank,  12  Met.  426;  Johns 
v.  Johns,  1  Ohio  St.,  350. 

12006.  TRANSFERS  OF  STOCK— by-laws  of  company.  Certificates 
of  stock  in  a  railway  company,  unlike  negotiable  paper,  can  only  be 
assigned  by  an  act  of  the  company,  or  in  pursuance  of  a  by-law.  Hall 
y.  Rose  Hill  &  Evanston  Road  Co.,  70  111.  673. 

1200e.  SAME— by  issue  of  new  certificate.  If  the  purchaser  of 
stock  of  a  railway  company  applies  to  procure  a  transfer  of  the  same 
to  him,  and  the  directors  order  the  transfer  to  him,  and  new  certifi- 
cates to  be  issued  to  him,  he  will  become  an  innocent  holder,  if  he  acts 
in  good  faith,  and  the  company  will  be  estopped  to  deny  that  the  stock 
thus  issued  is  valid.  Ib. 

1200(Z.  If  the  secretary  issues  new  certificates  of  stock  to  one  claim- 
ing to  have  purchased  shares  therein,  without  taking  up  or  cancelling 
the  original,  the  new  certificates  will  be  invalid.  Ib. 

1200e.  CERTIFICATE  OF  STOCK— presump tion  of  its  proper  issue. 
The  certificate  of  stock  in  a  railway  company,  issued  by  its  secretary, 
is  prima  facie  evidence  that  it  was  regularly  issued;  but  this  pre- 
sumption may  be  overcome  by  other  evidence,  as  by  showing  no  order 
was  passed  for  its  issue.  If  the  order  was  passed  and  not  entered  of 
record,  that  may  be  shown  by  the  holder.  Ib. 

1200/.  ASSIGNMENT—  relief  against  equitable  assignee  by  assignor. 
A  court  of  equity  will  not  give  the  assignor  of  stock  relief  against  a 
bona  fide  purchaser,  merely  because  the  latter  may  have  failed  to  have 
the  stock  transferred  to  him  upon  the  books  of  the  corporation,  as 
required  by  law.  It  is  no  concern  of  the  assignor  whether  the  assignee 
ever  becomes  invested  with  the  legal  title,  or  the  right  to  membership 
in  the  corporation.  Such  stock  may  be  regarded  as  a  chose  in  action, 
the  equitable  title  of  which,  as  between  the  parties,  may  be  transferred 
without  observing  the  requirements  of  the  charter  or  by-laws  of  the 
company  as  to  the  mode  of  transfer  so  as  to  pass  the  legal  title.  Otis 
v.  Gardner,  105  111.  436. 

1201.  ASSIGNMENT  OF  STOCK — neglect  to  enter  on  books.  Where 
a  charter  requires  all  sales  and  transfers  of  stock  to  be  made  upon  the 
books  of  the  corporation  in  order  to  be  valid,  this  provision  will  be 
regarded  as  designed  for  the  protection  of  the  company,  and  perhaps 
a  purchaser  without  notice;  but  as  between  the  assignor  and  pur- 
chaser, a  sale  and  transfer  will  be  good  without  being  entered  upon 
the  books,  and  will  be  enforced  in  equity.  Kellogg  v.  Stockwell,  75  111.  68. 

1201a.  EQUITABLE  ASSIGNMENT — rights  and  liabilities  of  as- 
signee. The  equitable  assignee  or  owner  of  stock  im  an  incorporated 
company  can  use  it  as  his  own  property,  control  it  and  receive  divi- 
dends thereon,  the  same  as  though  he  had  the  legal  title;  and  there- 
fore as  between  himself  and  his  assignor,  he  is  bound  to  assume  the 
burdens  imposed  upon  the  owner  of  the  legal  title  arising  out  of  as- 
sessments made  upon  the  stock.  /&. 

12016.  SAME— profecWcm  of  assignor  in  equity.  Where  shares  in 
the  capital  stock  of  an  incorporated  company  have  been  sold  and 
transferred,  but  not  in  accordance  with  the  charter  or  by-laws  of  the 
company,  so  as  to  pass  the  legal  title,  and  the  assignor  is  compelled  to 
make  payment  of  assessments,  or  is  liable  to  be  called  upon  for  pay- 
ment, a  court  of  equity  at  the  suit  of  the.  assignor,  will  require  the 
assignee  to  pay  or  indemnify  him,  as  the  case  may  require.  JT6. 


148  EAILBOADS,  WAEEHOUSES, 

1201c.  TRANSFER  OF  CERTIFICATES— assignee  not  protected .  Cer- 
tificates of  stock  are  not  securities  for  money,  nor  do  they  possess 
the  qualities  of  commercial  obligations,  so  as  to  protect  a  bona  fide 
purchaser  or  holder  from  equities  of  the  corporation  against  them; 
and  when  stock  of  a  corporation  is  fraudulently  issued  by  one  of  its 
officers  and  transferred  to  a  third  person  as  collateral  security  for  a 
debt,  it  is  not  error  upon  a  bill  filed  for  that  purpose,  to  order  the  cer- 
tificates of  such  stock  returned  and  cancelled.  Campbell  v.  Morgan. 
4  Bradw.  100. 

1201d.  TRANSFER  OF  SHAKES— as  against  creditors  of  assignor. 
Where  the  board  of  directors  of  a  corporation  are  expressly  empow- 
ered by  the  charter  to  provide  for  the  mode  of  transfer  of  shares  of 
stock,  and  the  board  does,  by  a  by-law,  provide  that  such  transfer  shall 
only  be  made  upon  the  books  of  the  secretary  on  the  presentation  of 
the  stock  certificates  properly  indorsed,  a  transfer  by  indorsement 
and  delivery  only,  will  not  be  valid  as  against  a  creditor  of  the  as- 
signor who  levies  his  execution  upon  such  shares  without  notice  of 
the  transfer.  People's  Sank  v.  Oridley,  91  111.  457. 

1201e.  SAME— as  between  the  parties.  As  between  the  vendor  and 
vendee  of  shares  of  stock  in  a  corporation  whose  charter  or  by-laws 
require  transfers  of  stock  upon  its  books,  a  sale  and  transfer  will  be 
good  without  being  entered  upon  the  company's  books,  and  will  be 
enforced  in  equity,  and  the  vendee  required  to  pay  subsequent  assess- 
ments, or  indemnify  the  vendor  against  their  payment .  Ib . 

1201/.  TRANSFER  OF  STOCK— as  against  execution  creditors. 
The  provision  of  the  statute  making  shares  of  stock  in  a  private  cor- 
poration subject  to  levy  and  sale  on  execution,  contemplates  that,  as 
against  a  judgment  creditor,  the  title  to  stock  in  such  corporation  can 
only  pass  by  transfer  on  the  books  of  the  company.  Ib. 

1202.  CORPORATION — liability  for  refusing  to  transfer  stock .  A 
corporation  will  be  liable  in  case  for  refusing  to  transfer  on  its  books 
shares  of  its  capital  stock  which  it  has  issued,  to  a  purchaser  of  the 
same,  unless  such  stock  is  absolutely  void  for  fraud  or  want  of  con- 
sideration, in  which  latter  event  no  action  will  lie  against  the  corpor- 
ation for  such  refusal.  Protection  Life  Ins.  Co.  v.  Osgood,  93  111.  69. 

1202a.  EQUITABLE  TRANSFER— passes  only  equitable  title.  The 
charter  of  a  private  corporation  provided  that  the  stock  should  be 
transferred  in  such  manner  as  the  directors  might  determine,  and  the 
by-laws  of  the  company  provided  that  the  secretary  should  keep  a 
book  upon  which  all  transfers  of  stock  should  be  made  by  the  holder  or 
holders,  or  by  his  or  their  attorney,  duly  constituted  in  writing.  A 
•holder  of  certificates  of  stock  delivered  the  same  with  a  blank  assign- 
ment and  power  of  attorney  indorsed  thereon,  to  a  borrower  of  the  same, 
which  power  authorized  the  assignee  to  have  the  stock  transferred  on 
the  books  of  the  company,  but  no  such  transfer  was  ever  made  upon 
the  books,  and  such  holder,  being  the  borrower,  transferred  the  certifi- 
cates as  collateral  security  for  a  loan.  Held,  that  the  legal  title  never 
passed  by  the  transfer  for  want  of  an  assignment  on  the  books  of  the 
company,  but  that  the  pledgee  took  an  equitable  title  as  security  for 
his  money,  of  which  he  could  not  be  divested  by  the  real  original 
owner.  Otis  v.  Gardner,  105  111.  436. 

12026.  Where  certificates  of  stock  are  assigned  in  blank  with  a 
power  of  attorney  for  a  transfer  on  the  books  of  the  company,  with  no 
limitation  as  to  their  use  by  the  assignee,  he  will,  as  to  persons  dealing 
with  him  without  notice  of  any  defect  of  power  in  him,  be  authorized 
to  make  any  legitimate  use  of  them,  and  he  may  transfer  them  as 
security  for  a  loan.  Ib. 

1202c.    ASSIGNMENT — in  the  absence  of  any  by-law,  &c.,  on  subject. 


AND  EMINENT  DOMAIN.  149 

In  the  absence  of  any  by-law  or  other  regulation  to  the  contrary,  an 
assignment  of  the  certificate  of  stock  by  indorsement  and  delivery, 
will  be  sufficient  to  authorize  the  assignee  to  vote.  People  v.  Devin. 
17  111.  84. 

1202c£.  TRANSFER — new  certificate  not  necessary.  A  transfer  of 
shares  upon  the  books  makes  the  transferee  a  shareholder,  although 
no  new  certificate  is  issued.  The  certificate  is  merely  the  evidence  of 
the  holder's  rights.  First  Nat.  Bank  v.  Biff  or  d,  47  Iowa,  575,  583; 
Hawley  v.  Upton,  102  U.  S.  314. 

1203.  EAILWAY  COMPANY— of  the  right  to  purchase  its  own  or 
other  stock.  The  weight  of  authority  in  this  country  is  in  favor  of  the 
power  of  a  corporation  to  purchase  its  own  capital  stock,  except  where 
the  circumstances  are  such  as  to  show  that  the  purchase  was  fraudu- 
lent in  fact,  or  that  the  corporation  was  insolvent  at  the  time  of  such 
purchase.  Fraser  v.  Ritchie,  8  Bradw.  554. 

1203a.  PURCHASE  OF  ITS  OWN  STOCK — as  against  creditors  of 
company.  A  corporation  has  not  the  power  as  against  creditors  to 
extinguish  its  capital  stock.  So,  where  a  corporation  conveyed  to  one 
of  its  shareholders  a  large  amount  of  real  estate  and  other  property, 
and  in  return  received  the  surrender  of  the  shares  of  stock  held  by 
him,  which  were  then  cancelled:  Held,  that  a  judgment  creditor  of 
the  corporation  could  maintain  a  bill  to  subject  the  property  so  con- 
veyed, to  the  payment  of  his  judgment;  and  that  it  made  no  difference 
that  there  might  be  enough  property  remaining  with  the  corporation 
to  satisfy  his  judgment.  The  lien  attached  to  the  whole  stock,  and  the 
creditor  could  not  be  remitted  to  his  remedy  against  the  remaining 
shares.  Peterson  v.  III.  L.  &  L.  Co.,  6  Bradw.  257. 

12036.  Although  a  corporation  has  the  power  to  purchase  its  own 
stock,  yet  in  equity  the  transaction  may  be  impeached,  if  it  operates  to 
the  injury  of  creditors.  Clapp  v.  Peterson,  104  111.  26. 

1203e.  The  shareholders  of  a  corporation  are  conclusively  charged 
with  notice  of  the  trust  character  which  attaches  to  its  capital  stock.  Ib. 

1203<2.  Private  corporations  may  purchase  their  own  stock  in 
exchange  for  money  or  other  property,  arid  hold,  re-issue  or  retire  the 
same,  if  it  is  done  in  entire  good  faith,  and  the  exchange  is  of  equal 
value,  and  is  free  from  all  fraud,  actual  or  constructive,  and  if  the  cor- 
poration is  not  insolvent  or  in  process  of  dissolution,  and  the  rights  of 
creditors  are  not  affected  thereby.  Ib. 

1203e.  The  purchase  of  its  own  stock  by  a  corporation  by  the 
exchange  of  its  property  of  equal  value,  though  made  in  good  faith 
without  any  element  of  fraud  about  it,  there  not  being  anything  in  the 
apparent  condition  of  the  company  to  interfere  with  the  making  of 
the  exchange,  will  not  be  allowed  where  it  injuriously  aft'ects  a  creditor 
of  the  company,  even  though  the  fact  of  indebtedness  was  not  at  the 
time  established  or  known  to  the  stockholder.  Ib. 

1204.  EQUITABLE  LIEN  or  CREDITORS  ON  CAPITAL  STOCK.  The 
capital  stock  of  a  private  corporation  is  a  fund  set  apart  for  the  pay- 
ment of  its  debts,  and  its  creditors  have  a  lien  in  equity .  If  diverted 
they  may  follow  it  as  far  as  it  can  be  traced,  and  subject  it  to  their 
claims,  except  as  against  holders  who  have  taken  it  bona  jide  for  a 
valuable  consideration  and  without  notice .  Ib . 

1204a.  CAPITAL  STOCK,  A  TRUST  FUND— notice  thereof  to  stock- 
holders. The  shareholders  of  a  corporation  are  conclusively  charged 
with  notice  of  the  trust  character  which  attaches  to  the  capital  stock. 
As  to  it,  they  cannot  occupy  the  status  of  innocent  purchasers,  but 
they  are  to  all  intents  and  purposes  privies  to  the  trust.  When,  there- 
fore, they  have  in  their  hands  any  of  this  trust  fund,  they  hold  it 
cum  onere,  subject  to  all  the  equities  which  attach  to  it.  Ib. 


150  EAILEOADS,  WABEHOUSES, 

1205.  PURCHASE  or  ITS  OWN  STOCK.    The  directors  of  a  railway 
company,  when  not  prohibited  by  the  charter,  have  the  lawful  power 
to  purchase  shares  of  its  own  stock  issued  to  others.    C.  P.  &8.  W.R. 
R.  v.  Marseilles,  84  111.  145,  643;  Fraser  v.  Ritchie,  8  Bradw.  554.    See 
also  Peterson  v.  III.  Land  &  Loan  Co.,  6  Bradw.  257;  Chetlain  v.  Re- 
public L.  Ins.  Co.,  86  111.  220;  Dupee  v.  Boston   Water  Power  Co.,  114 
Mass.  37;  State  v.  Building  Assoc.,  35  Ohio  St.  258. 

INCKEASE  OF  CAPITAL  STOCK. 

CALL  OF  SPECIAL  MEETINGS  FOB  —  OTHER  BUSINESS. 

1206.  OF  THE  NOTICE  OF  SUCH  MEETING — record  of  pro- 
ceedings.     §  15.    In   case  the   capital   stock    of    any  such 
corporation  shall  be  found  insufficient  for  constructing  and 
operating  its  road,  such  corporation  may,  with  the  concur- 
rence of  two-thirds  in  value  of  all  its  stock,  increase  its  cap- 
ital stock,  from  time  to  time,  to  any  amount  required  for  the 
purpose  aforesaid.     Such  increase  shall  be  sanctioned  by  a 
vote,  in  person  or  by  proxy,  of  two-thirds  in  amount  of  all 
the  stock  of  such  corporation,  at  a  meeting  of  such  stock- 
holders called  by  the  directors  of  the  corporation  for  such 
purpose,  by  giving  notice  in  writing  to  each  stockholder,  to 
be  served  personally  or  by  depositing  the  same  in  a  post- 
office,  directed  to  the  postoffice  address  of  each  of  said  stock- 
holders severally,  with  necessary  postage  for  the  transmittal 
of  the  same,  prepaid,  at  least  sixty  days  prior  to  the  day  ap- 
pointed for  such  meeting,  and  by  advertising  the  same  in 
some  newspaper  published  in  each  county  through  or  into 
which  the  said  road  shall  run  or  be  intended  to  run  (if  any 
newspaper  shall  be  published  therein),  at  least  sixty  days 
prior  to  the  day  appointed  for  such  meeting.     Such  notice 
shall  state  the  time  and  place  of  the  meeting,  the  object 
thereof,  and  the  amount  to  which  it  is  proposed  to  increase 
such  capital  stock;  and  at  such  meeting  the  corporate  stock 
of  such  corporation  may  be  so  increased,  by  a  vote  of  two- 
thirds  in  amount  of  the  corporate  stock  of  such  corporation, 
to  an  amount  not  exceeding  the  amount  mentioned  in  the  no- 
tices so  given.     Should  the  directors  of  any  such  corporation 
desire  at  any  time  to  call  a  special  meeting  of  the  stockhold- 
ers, for  any  other  necessary  purpose,  the  saine  may  be  done 
in  the  manner  in  this  section  provided,  and  if  such  meeting 
be  attended  by  the  owners  of  two-thirds  in  amount  of  the 
stock,  in  person  or  by  proxy,  any  other  necessary  business  of 
such  corporation  may  be  then  transacted,  except  the  altering, 
amending  or  adding  to  the  by-laws  of   such  corporation  : 
Provided,  such  business  shall  have  been  specified  in  the  no- 
tices given.     And  the  proceedings  of  any  such  meeting  shall 
be  entered  on  the  journal  of  the  proceedings  of  such  corpo- 
ration.    Every  order  or   resolution  increasing  the   capital 
stock  of  any  such  corporation  shall  be  duly  recorded  as  re- 


AND  EMINENT  DOMAIN.  151 

quired  in  section  2  of  this  act.      [  B.  S.  1887,  p.  1003,  §  15; 
S.  &  C.,  p.  1911,  §  15;  Cothran,  p.  1140,  §15.] 

1207.  SPECIAL  CHA.KTER— power  under,  to  increase  capital  stock. 
A  special  charter  which  in  terms  vested  all  corporate  powers  in  the 
directors,  held,  not  to  authorize  them  to  increase  the  capital  stock 
without  the  assent  of  stockholders.  Ry.  Co.  v.  Allerton,  85  U.  S.  233. 

1207a.  INCREASE  or  CAPITAL — power  of  directory.  "A  charter 
authorized  an  increase  of  the  capital .  stock,  but  failed  to  provide  by 
whom  the  power  might  be  exercised :  Held,  that  the  directors  did  not 
merely  by  virtue  of  their  position  as  such,  have  authority  to  increase 
the  capital  stock  without  the  assent  of  the  shareholders.  Eidman  v. 
Bowman,  58  111.  444. 

12076.  It  seems  the  management  and  transaction  of  all  business 
for  which  a  corporation  is  created,  and  its  general  affairs,  are  within 
the  usual  powers  of  the  board  of  directors,  but  a  power  given  to  a 
corporation  to  increase  its  capital  stock,  cannot  be  exercised  by  the 
directors,  except  they  be  specially  authorized  so  to  do,  either  by  the 
charter  or  by  the  shareholders.  Eidman  v.  Bowman,  58  111.  444. 

1207c  INCREASE  OF  STOCK — who  entitled  to  shares.  If  the  capi- 
tal stock  of  a  corporation  be  increased  by  proper  authority,  the  right 
to  such  additional  stock  vests  in  the  original  stockholders,  each  one  to 
take  in  proportion  to  the  amount  held  by  him  of  the  original  stock, 
if  he  will  pay  for  it.  This  right  may  be  waived,  but  if  it  is  not,  the 
party  entitled  cannot  be  deprived  of  it  by  the  board  of  directors  of 
the  corporation  or  otherwise.  Eidman  v.  Bowman,  58  111.  444. 

1208.  STOCKHOLDERS'  LIABILITY — holder  in  representa- 
tive capacity  exempted.     §  15^.     No  person  holding  stock  in 
any  such  corporation  as  executor,  administrator,  guardian  or 
trustee,  and  no  person  holding  such  stock  as  collateral  se- 
curity, shall  be  personally  subject  to  any  liability  as  stock- 
holders of  such  corporation;   but  the  person  pledging  the 
stock  shall  be  considered  as  holding  the  same,,  and  shall  be 
liable  as  a  stockholder  accordingly.     [B.  S.  1887,  p.  1003,  § 
16;  S.  &  0.  p.  1912,  §  16;  Cothran,  p.  1140,  §  16.] 

1209.  STOCKHOLDERS'  INDIVIDUAL  LIABILITY— for  debts  to 
extent  of  unpaid  subscriptions.     §  16.     Each  stockholder  of 
any  corporation  formed  under  the  provisions  of  this  act,  shall 
be  held  individually  liable  to  the  creditors  of  such  corpora- 
tion to  an  amount  not  exceeding  the  amount  unpaid  on  the 
stock  held  by  him,  for  any  and  all  debts  and  liabilities  of 
such  corporatiori,  until  the  whole  amount  of  the  capital  stock 
of  such  corporation  so  held  by  him  shall  have  been  paid. 
[B.  S.  1887,  p.  1003,  §  17;   S.  &  C.,  p.  1912,  §  17;  Cothran,  p. 
1140,  §  17.] 

1210.  POWER  OF  LEGISLATURE— to  impose  liability  on  sharehold- 
ers in  existing  corporations.  Although  no  power  of  amendment  may 
be  reserved  in  a  charter,  the  legislature  may,  after  its  grant,  impose 
an  individual  liability  on  stockholders  and  officers  of  a  corporation  by 
subsequent  legislation,  without  infringing  upon  any  constitutional 
rights  of  the  stockholder.  Shufeldt  v.  Carver,  8  Bradw.  545;  Fogg  v. 
Sidwell,  Id.,  551. 

1210a.    RESERVATION  OF  POWER — to  regulate  by  general  laws.   A 


152  RAILROADS,  WAREHOUSES, 

reservation  in  a  charter,  or  an  amendment  thereto,  of  the  right  of  the 
legislature  to  bring  the  corporation  under  general  laws,  does  not  bind 
the  legislature  to  enact  any  specific  law,  and  does  not  operate  as  a 
contract  with  the  stockholders  that  they  shall  be  subjected  to  any 
specific  additional  primary  liability  on  their  contracts  of  subscription. 
But  the  legislature  may  enact  such  general  laws  as  it  thinks  best  and 
such  laws  may  be  even  penal  in  their  character .  Diversy  \.Smith, 
103  111.  378. 

12106.  CONSTITUTION  or  1848 — as  providing  for  reservation  of 
power  over  corporations.  §  2,  art.  10,  of  the  constitution  of  1848  was 
aesigned  to  express  the  reservation  of  power  in  the  legislature,  in 
granting  charters,  to  provide  from  time  to  time  by  proper  laws  for 
securing  dues  and  debts  from  corporations  by  individual  liability  of 
the  corporators,  or  otherwise.  Weidenger  v.  Spruance,  101  111.  278; 
Diversy  v.  Smith,  103  111.  378. 

1210c.  Where  a  special  charter  of  an  insurance  company  contains 
a  provision  that  it  may  be  altered,  amended  or  repealed  at  any  time, 
there  can  be  no  doubt  of  the  power  of  the  legislature  to  amend  such 
charter  in  such  manner  as  it  may  see  proper,  in  reference  to  the  rights, 
duties  and  liabilities  of 'the  company  and  its  stockholders.  Sutler  v. 
Walker,  80  111.  345;  Diversy  v.  Smith,  103  111.  378. 

1210cZ.  A  general  law,  making  trustees  and  corporators  of  insur- 
ance companies,  including  those  already  acting  under  special  charters, 
severally  liable  for  all  debts  of  their  companies,  to  the  amount  by 
them  subscribed,  until  the  whole  amount  of  the  capital  shall  be  paid 
in,  is  not  a  law  impairing  the  obligation  of  any  contract.  Weidenger 
v.  Spruance,  101  111.  278. 

1211.  The  real  obligation  of  the  contract  of  such  subscriber  to  the 
capital  stock  of  a  corporation,  is  that  he  will  pay  for  his  stock.    A 
mere  expectation  on  his  part  that  the  law  will  not  be  enforced,  requir- 
ing all  the  capital  stock  to  be  paid  in,  is  not  a  vested  right.    If  the 
stockholders  and  the  corporation  fail  to  have  the  stock  paid  in,  it  is 
competent  for  the  legislature  to  impose  a  reasonable  penalty,  such  as 
that  prescribed  by  the  insurance  law  of  1869.    Ib. 

121  la.  The  legislature  had  the  right  to  repeal  so  much  of  the  act 
of  1857,  relating  to  private  corporations,  as  made  the  stockholders 
personally  liable  to  creditors,  to  the  amount  of  their  stock,  there  being 
no  vested  right  in  such  provision.  A  law  changing  the  remedy  for 
the  collection  of  a  debt  is  not  liable  to  any  constitutional  objection. 
Richardson  v.  Akin,  87  111.  138. 

1212.  As  to  the  individual  liability  of  stockholders  under  similar 
laws  and  special  acts,  as  to  the  evidence  of  being  stockholders,  and 
remedies  to  enforce  such  liability.    See  post  2812. 

1213.  EMINENT  DOMAIN — acquisition  of  land  by  condem- 
nation. §  17.  If  any  such  corporation  shall  be  unable  to 
agree  with  the  owner  for  the  purchase  of  any  real  estate  re- 
quired for  the  purposes  of  its  incorporation,  or  the  transac- 
tion of  its  business,  or  for  its  depots,  station  buildings, 
machine  and  repair  shops,  or  for  right  of  way  or  any  other 
lawful  purpose  connected  with  or  necessary  to  the  building, 
operating  or  running  of  said  road,  such  corporation  may  ac- 
quire such  title  in  the  manner  that  may  be  now  or  hereafter 
provided  for  by  any  law  of  eminent  domain.  [R.  S.  1887,  p. 
1003,  §  18;  S.  &  C.,p.  1912,  §  18;  Cothran,  p.  1141,  §  18;  ante 
303etseq.] 


AND  EMINENT  DOMAIN.  153 

1214.  EMINENT  DOMAIN — material  for  road  by  condem- 
nation.    §  18.     Any  such  corporation  may,  by  their  agents 
and  employes,  enter  upon  and  take  from  any  land  adjacent 
to  its  road,  earth,  gravel,  stone,  or  other  materials,  except 
fuel  and  wood,  necessary  for  the  construction  of  such  railway, 
paying,  if  the  owner  of  such  land  and  the  said  corporation 
can  agree  thereto,  the  value  of  such  material  taken  and  the 
amount  of  damage  occasioned  thereby  to  any  such  land  or  its 
appurtenances;  and  if  such  owner  and  corporation  cannot 
agree,  then  the  value  of  such  material,  and  the  damage  occa- 
sioned to  such  real  estate,  may  be  ascertained,  determined 
and  paid  in  the  manner  that  may  now  or  hereafter  be  provi- 
ded by  any  law  of  eminent  domain,  but  the  value  of  such 
materials,  and  the  damages  to  such  real  estate,  shall  be  ascer- 
tained, determined  and  paid  for  before  such  corporation  can 
enter  upon  or  take  the  same.     [K.  S.  1887,  p.  1004,  §  19;  S.  & 
C.,  p.  1912,  §  19;  Cothran,  p.  1141,  §  19;  §  179  ante. 

1215.  If  the  contractors  who  are  bound  to  furnish  all  materials  by 
their  contract  take  materials  for  the  construction  of  their  road,  the 
corporation  will  be  liable  to  make  compensation  therefor.    Lesher  v. 
Wabash  Nav.  Co.,  14  111.  85;  Hinde  v.  Wabash  Nav.  Co.,  15  111.  72: 
cited  and  distinguished  in  Scammon  v.  Chicago,  25  111.  424. 

1216.  A  railway  corporation  is  liable  to  third  persons  for  the  tor- 
tious  acts  of  its  contractors  while  constructing  the  road.    Ch.,  St. 
Paul  &  Fond  Du  Lac  R.  JR.  v.  McCarthy,  20  111.  385 ;  West  v.  St.  L.,  V.  & 
T.  H.  R.  R.,  63  111.  545. 

1217.  So,  it  is  liable  for  the  acts  of  its  lessees,  or  contractors  in 
operating  and  using  the  road  under  its  authority.    O.  &  M.  R.  R.  v. 
Dunbar,  20  111.  623;  Ch.  &  R.I.  R.  R.  v.  Whipple,  22  111.  105;  III.  Cen- 
tral R.  R.  v.  Read,  37  111.  484;  /.  C.  R.  R.  v.  Finnigan,  21  111.  646;  P. 
&  R.  I.  R.  R.  v.  Lane,  83  111.  448;  P.,  C.  &  St.  L.  Ry.  v.  Campbell,  86 
111.  443;  Balsley  v.  St.  L.,  A.  &  T.  H.  R.  R.,  119  111.  68. 

1218.  A  railway  company  allowing  another  to  operate  its  unfenced 
road  will  be  liable  for  stock  killed  through  neglect  to  fence.    III.  Cen- 
tral R.  R.  v.  Kanouse,  39  111.  272;  T.,  P.  &  W.  Ry.  v.  Rumbold,  40  111. 
143;  Wab.,  St.  L.  &  P.  Ry.  v.  Peyton,  106  111.  534. 

1219.  Consolidated  company  liable  for  the  acts  of  the  companies 
consolidated.    C.,  R.  I.  &  P.  R.  R.  v.  Moffitt,  75  111.  524. 

1219a.  The  liability  of  a  railway  company  for  injuries  by  the 
wrongful  acts  of  any  lessee,  contractor  or  other  person,  done  in  the  exer- 
cise of  any  of  its  franchises,  is  limited  to  "wrongs  done  by  them  while 
in  the  performance  of  acts  which  they  would  have  had  no  right  to  per- 
form, except  under  the  charter  of  the  company"  sought  to  be  made 
liable.  St.  L.,  A.  &  T.  H.  R.  R.  v.  Balsley,  18  Bradw.  79. 

1219&.  As  to  liability  of  a  railway  company  for  acts  or  torts  of  a 
receiver  operating  the  road.  See  Wyatt  v.  0.  &  M.  .R  R.,  10  Bradw. 
289;  Brown  v.  Wabash  Ry.,QQ  111.  297;  Metz  v.  B.,  C.&P.  R.  R.,  58  N. 
Y.  61;  0.  &  M.  R.  R.  v.  Davis,  23  Ind.  553;  Bell  v.  /.  C.  &  L.  R.  R.,  53 
Ind.  57;  Turner  v.  H.  &  St.  Jo.  R.  R.,  74  Mo.  602;  0.  &  M.  R.  R.  v. 
Anderson,  10  Bradw.  313;  High  on  Receivers,  §§  396,  397:  contra,  Cent. 
Trust  Co.  v.  Wab.,  St.  L.  &  P.  R.  R.,  26  Fed.  Rep.  12. 

121 9c.  If  the  trustees  of  a  railway  company  do  business  in  the 
name  of  the  company,  they  are  liable  to  suit  in  that  name,  and  their 


154  KAILEOADS,  WAREHOUSES, 

property  is  responsible  for  liabilities  incurred  while  transacting  busi- 
ness in  that  name.     Wilkinson  v.  Fleming,  30  111.  353. 

1219eZ.  COMPANY  LIABLE  —for  acts  of  trustees.  Trustees  selected 
by  the  corporation  as  well  as  the  bondholders,  while  in  possession  op- 
erating the  road  to  earn  money  to  pay  debts  of  the  corporation,  will 
be  regarded  as  the  agents  pi'  the  corporation  so  far  as  relates  to  the 
transaction  of  business  with  third  persons,  and  such  persons  may  sue 
the  corporation  and  recover  damages  in  respect  to  transactions  with 
such  trustees,  and  will  not  be  compelled  to  sue  the  trustees.  Gr.  T. 
Manf.  &  Transp.  Co.  v.  Ullman,  89  111.  244. 

1220.  ADDITIONAL  POWERS.  §  19.  Every  corporation 
formed  under  this  act  shall,  in  addition  to  the  powers  herein- 
before conferred,  have  power  :  — 

ENTRY  UPON  LANDS  —  to  examine,  survey  and  lay  its  road. 
First  —  To  cause  such  examination  and  survey  for  its  pro- 
posed railway  to  be  made  as  may  be  necessary  to  the  selection 
of  the  most  advantageous  route ;  and  for  such  purpose,  by  its 
officers,  agents  or  servants,  may  enter  upon  the  lands  or 
waters  of  any  person  or  corporation,  but  subject  to  responsi- 
bility for  all  damages  which  shall  be  occasioned  thereby. 
[E.  S.  1887,  p.  1004,  §  20;  S.  &  0.,  p.  1912,  §20;  Cothran,  p. 
1141,  §  20.] 

1221.  Where  a  railway  in  the  exercise  of  the  powers  conferred 
upon  it,  commits  an  injury  to  the  land  of  another  by  entering  upon  it 
in  order  to  make  preliminary  surveys,  or  by  taking  materials  there- 
from, or  the  like,  and  the  law  under  which  such  acts  are  done,  pre- 
scribes a  mode  for  assessing  damages  for  such  injuries,  an  action  of 
tort  will  not  lie  theref  r,  but  the  statutory  remedy  must  be  pursued  — 
it  being  in  general,  exclusive.    Smith  v.  C.,  A.  &  St.  L.  R.  R.  67  111.  191. 

1222.  On  an  assessment  of  damages  for  right  of  way,  it  is  error  to 
admit  evidence  of  a  violent  entry  upon  the  land  going  to  show  a  will- 
ful trespass.    L.  B.  &  M.  R.  R.  v.  Winslow,  66  111.  219. 

1223.  LOCATION.    The  Illinois  Central  Railroad  company  had  the 
right  under  its  charter,  to  locate  its  road  in  the  waters  of  Lake  Mich- 
igan. I.  C.  R.  R.  v.  Rucker,  14  111.  353. 

1224.  The  grant  of  a  right  to  extend  to  and  unite  with  any  other 
railroad  in  this  state  gives  the  right  to  extend  to  any  other  railroad 
within  the  prescribed  limits.  Bellmlle  &  III.  R.  R.  v.  Gregory,  15  111.  20. 

1225.  Railroad  crossing  another  has  the  right  to  select  the  point 
and  manner  of  intersection.    L.,  S.&  M./3.  Ry  v.  Ch.  &  W.  Ind.  R.  R., 
97  111.  506. 

1225a.  CHANGE  OF  LOCATION.  After  haying  once  fixed  the  termi- 
nal points  of  its  road,  and  located  its  depot  in  a  town  or  city,  a  rail- 
way company  has  no  power  afterwards  to  change  the  same  without 
legislative  authority,  but  it  will  be  held  to  its  election.  People  v.  L. 
&N.  R.R.,  120111.  48. 

1226.  ACQUISITION  OF  PROPERTY  BY  VOLUNTARY  GRANT. 
Second.     To  take  and  hold  such  voluntary  grants  of  real  estate 
and  other  property  as  shall  be  made  to  it,  in  aid  of  the 
construction  and  use  of  its  railway,  and  to  convey  the  same 
when  no  longer  required  for  the  uses  of  such  railway,  not  in- 
compatible with  the  terms  of  the  original  grant.     [E.  S.  1887, 


AND  EMINENT  DOMAIN.  155 

p.  1004,   §  20;  S.  &.   C.,   p.  1913,   §  20;  Cothran,  p.  1141, 
§20.] 

1227.  A  deed  to  a  railway  company  "of  the  right  of  way"  of  the 
railroad,  with  nothing  to  define  its  extent  in  width,  when  the  charter 
does  not  define  the  extent  of  the  right  of  way,  is  too  indefinite  to  con- 
stitute color  of  title.     Wray  v.  C.,  B.  &  Q.  R.  R.,  86  111.  424. 

1228.  EFFECT  OF  RELEASE.    A  contract  of  a  party  by  which  he 
agrees  to  release  and  convey  a  right  of  way  to  a  railway  company  over 
any  lands  he  may  own,  as  soon  as  the  road  is  located,  will  preclude  him 
from  claiming  damages  from  the  construction  of  the  road  over  his 
lands.    Conwell  v.  S.  &  N.  W.  R.  R.,  81  111  232. 

1229.  ACQUISITON  OF  PROPERTY — by  purchase — disposi- 
tion of  same.  Third — To  purchase,  hold  and  use  all  such  real 
estate  and  other  property  as  may  be  necessary  for  the  con- 
struction and  use  of  its  railway,  and  the  stations  and  other 
accommodations  necessary  to  accomplish  the  object  of  its 
incorporation,  and  to  convey  the  same  when  no  longer  re- 
quired for  the  use  of  such  railway.  [  E.  S.  1887,  p.  1004,  §  20; 
S.  &  C.,  p.  1913,  §  20;  Cothran,  p.  1142,  §  20.] 

1230.  CONVEYANCE — estate  granted.  A  deed  to  a  railway  company 
conveying  no  land,  but  only  -the  right  to  construct,  maintain  and  use 
in,  through,  upon  and  over  certain  lands,  all  such  railroad  tracks, 
depots,  warehouses,  &c.,  as  the  company  should  find  necessary  or  con- 
venient for  transacting  its  business,  and  to  keep  thereon  without  dis- 
turbance, all  property  belonging  to  or  in  the  possession  of  the  com- 
pany, to  have  and  to  hold  the  said  rights  and  easements  so  long  as  the 
same  should  be  used  for  such  purposes,  and  for  no  other,  even  forever, 
passes  only  an  easement  which  is  a  freehold  of  inheritance,  though 
only  a  base  or  qualified  fee,  which  may  be  defeated.  Wiggins  Ferry 
Co.  v  0  &  M.  Ry.,  94  111.  83. 

1231.  POWERS — to  lay  out  and  construct  road  100  feet 
wide — when  may  take  more.     Fourth — To  lay  out  its  road, 
not  exceeding  one  hundred  feet  in  width,  and  to  construct 
the  same ;  and  for  the  purpose  of  cuttings  and  embankments, 
to  take  as  much  more  land  as  may  be  necessary  for  the  proper 
construction  and  security  of  the  railway;  and  to  cut  down 
any  standing  trees  that  may  be  in  danger  of  falling  upon  or 
obstructing  the  railway,  making  compensation  therefor  in 
manner  provided  by  law.     [E.  S.  1887,  p.  1004,  §  20;  S.  &  C., 
p.  1913,  §  20;  Cothran,  p.  1142,  §  20.] 

1232.  WIDTH  OF  RIGHT  OF  WAY.    Company  not  bound  to  take 
and  pay  for  all  the  lands  described  in  the  petition,  if  less  will  answer 
its  purposes.    Peoria  &  R.  I.  Ry.  v.  Bryant,  57  111.  473. 

1233.  Width  of  the  land  as  described  in  thje  report  of  the  commis- 
sioners was  held,  to  control,  and  where  acquiesced  in  by  the  company, 
with  knowledge,  it  is  concluded.    76. 

1234.  Alteration  of  the  route  subsequent  to  the  assessment  of 
damages  gives  the  land-owner  a  right  to  recover  for  damages  result- 
ing therefrom.     Peoria  &  R.  I.  R.  R.  v.  Birkett,  62  111.  332. 

1235.  POWERS — to  build  road  across  or  upon  streams, 
highways,  streets,  &c. — consent  to,  or  condemnation.  Fifth — 


156  EAILEOADS,  WAREHOUSES, 

To  construct  its  railway  across,  along  or  upon  any  stream  of 
water,  watercourse,  street,  highway,  plank  road,  turnpike  or 
canal,  which  the  route  of  such  railway  shall  intersect  or 
touch;  but  such  corporation  shall  restore  the  stream,  water- 
course, street,  highway,  plank  road  and  turnpike  thus  inter- 
sected or  touched,  to  its  former  state,  or  to  such  state  as  not 
unnecessarily  to  have  impaired  its  usefulness,  and  keep  such 
crossing  in  repair:  Provided,  that  in  no  case  shall  any  rail- 
road company  construct  a  road-bed  without  first  constructing 
the  necessary  culverts  or  sluices,  as  the  natural  lay  of  the 
land  requires  for  the  necessary  drainage  thereof.  Nothing 
in  this  act  contained  shall  be  construed  to  authorize  the  erec- 
tion of  any  bridge,  or  any  other  obstruction,  across  or  over 
any  stream  navigated  by  steamboats,  at  the  place  where  any 
bridge  or  other  obstructions  may  be  proposed  to  be  placed, 
so  as  to  prevent  the  navigation  of  such  stream;  nor  to  au- 
thorize the  construction  of  any  railroad  upon  or  across  any 
street  in  any  city,  or  incorporated  town  or  village,  without 
the  assent  of  the  corporation  of  such  city,  town  or  village: 
Provided,  that  in  case  of  the  constructing  of  said  railway 
along  highways,  plank  roads,  turnpikes  or  canals,  such  rail- 
way shall  either  first  obtain  the  consent  of  the  lawful  author- 
ities having  control  or  jurisdiction  of  the  same,  or  condemn 
the  same  under  the  provisions  of  any  eminent  domain  law 
now  or  hereafter  in  force  in  this  state.  [R.  S.  1887,  p.  1004, 
§  20;  S.  &  a,  p.  1913,  §  20;  Cothran,  p.  1142,  §  20.  See 
ante  60.] 

1236.  RAILWAY  OVER  STREAMS — duty  as  to  culverts.  Duty  of 
railway  company  in  constructing  its  road  under  legislative  authority 
over  water  courses  on  private  land,  to  make  suitable  bridges,  culverts, 
or  other  provisions  for  carrying  oft'  the  water  effectually,  and  to  keep 
them  in  suitable  repair.  1.  C.  R.  R.  v.  Bethel,  11  Bradw.  17. 

1236a.  In  constructing  culverts  for  the  passage  of  water  the  com- 
pany must  exercise  ordinary  care  and  skill,  and  bring  to  bear  on  the 
'  work  such  engineering  knowledge,  care  and  skill  ordinarily  applied 
to  works  of  that  kind,  as  may  bs  reasonably  deemed  sufficient  to  avoid 
damages  from  the  stream,  in  connection  with  the  work,  in  all  ordinary 
floods  or  freshets.  Ib. 

12366.  If  the  construction  of  a  railroad  over  a  water  course  was 
not  improperly  done,  and  is  washed  out  by  an  extraordinary  flood, 
leaving  debris  upon  the  land  of  an  adjacent  owner,  beyond  the  com- 
pany's right  of  way,  the  company  is  not  bound  to  remove  such  mater- 
ial; and  if  by  reason  of  it  being  so  lodged,  the  waters  of  the  stream  are 
diverted  in  a  subsequent  freshet,  it  will  not  give  to  such  adjacent 
owner  any  right  of  action.  Ib. 

1236c.  BRIDGES  AND  WATER  COURSES— obstruction  of  flow  of 
water.  A  railway  company  is  only  required  to  construct  its  bridges 
across  water  courses  with  such  care  and  skill  as  to  make  them  suf- 
ficient to  pass  the  water  in  all  ordinary  floods  and  freshets.  P.,  Ft.  W. 
&  C.  R.R.  v.  Gtilleland,  56  Pa.  St  445;  Town  of  China  v.  Southwick, 
12  Me.  238:  Lawler  v.  Baring  Boom  Co.,  56  Me.  443;  Norris  v.  Vt. 
Cent.  K.R.,2S  Vt.  99;  Henry  v.  Vt.  Cent.  R.  R.,  30  Vt.  638;  Sprague 


AND  EMINENT  DOMAIN.  157 

v.  Worcester.  13  Gray.  193;  Smith  v.  Agawam  Canal  Co.,  2  Allen, 
355. 

1237  OBSTRUCTION  OF  NATURAL  FLOW  OF  WATER — liability  for. 
A  railway  company  is  liable  for  any  injury  that  may  result  to  the 
owner  of  lands  from  an  obstruction  created  by  it  in  the  natural  flow  of 
surface  water.  K.  &  8.  R.  R.  v.Horan,  22  Bradw.  145. 

1288.  The  fact  that  a  railway  owns  a  right  of  way  over  the  plain- 
tiff's land,  does  not  authorize  it  to  make  such  a  change  thereon,  by 
structures  or  otherwise,  as  to  flow  water  back  upon  the  land  of  the 
plaintiff,  or  others,  and  thereby  inflict  an  injury.  C.,  R.  I.&  P.  R.  R. 
v.  Carey,  90  111.  514.  See  also,  /.  N.  W.  &  8.  W.  R.R.v.  Cox,Ql  111. 
500. 

1239.  As  to  measure  of  damages  in  case  of  obstructing  the  free 
passage  and  flow  of  water.    See  K.  &  S.  R.  R.  v.  Horan,  22  Bradw. 
145;  <?.,#.  I.  &P.  R.  R.  v.  Carey,  90  111.  514. 

1240.  A  railway  company  has  no  right,  by  an  embankment  or 
other  artificial  means,  to  obstruct  the  natural  flow  of   the  surface 
water,  and  thereby  force  it  in  an  increased  quantity  upon  the  lands  of 
another,  and  if  it  does  so,  it  is  liable  for  any  injury  that  the  owner  of 
the  land  may  sustain  by  reason  thereof.     T.  W.  &  W.  Ry.  v.  Morrison, 
71  111.  616.     See  also  Gillham  v.  Madison  Co.  R.  R.  49  111.  484;  Laney 
v.  Jasper,  39  111.  46;  Gormley  v.  Sanford,  52  111.  158;  C.,  B.  &  Q.  R. 
R.  v.  Schaffer.      -  111.  — .    Filed  March  28, 1888. 

1241.  A  railway  company  by  obstructing  the  flow  of  a  water 
course  will  not  be  liable  to  the  owner  of  cattle,  who  has  no  interest  in 
the  grounds  overflowed,  but  who  made  a  contract  with  the  owner  of 
the  lands  so  overflowed  to  feed  the  same,  after  the  obstruction  was 
made.     T.,  W.  &  W.  Ry.  v.  Hunter,  50  111.  325. 

1242.  BESTORING  FORMER  USEFULNESS.    The  statute  requiring 
the  restoration  of  the  stream  crossed  by  a  railroad  to  its  former  use- 
fulness, applies  to  streams  not  navigable  as  well  as  to  those  navigable. 
C.,  R.  1.  &P.  R.R.  v.  Moffitt,  75  111.  524. 

1243.  Where  a  railroad  crosses  a  stream  not  navigable  under  legis- 
lative authority,  which  imposes  a  duty  to  leave  the  stream  in  such 
condition  as  not  to  materially  destroy  its  usefulness,  the  company  will 
be  under  substantially  the  same  obligation  as  would  be  upon  a  private 
owner  of  the  land  and  stream  who  had  undertaken  to  interfere  with 
the  water  course  in  the  same  way;  and  if  it  so  constructs  its  bridge 
as  to  obstruct  the  stream  by  the  accumulation  of  drift,  &c.,  and  thus 
overflow  the  lands  of  others,  it  will  be  liable  for  the  damages.     J6. 

1244.  BRIDGE — when  built  by  city .    A  bridge  built  by  a  railway 
company    over    a   navigable   stream    within   the   limits  of   a  city, 
for  the  use  of  the  railroad,  under  an  ordinance  of  the  city  granting 
permission  and  providing  the  manner  in  which  it  should  be  built,  may 
be  regarded  as  having  been  constructed  by  the  city,  and  as  falling 
fairly  within  the  power  given  to  it  to  construct  and  repair  bridges 
and  regulate  the  use  of  them.    McCartney  v.  Ch.  &  E.  R.  R.,  112 
111.  611. 

1244a.  As  to  obstruction  of  navigable  stream  by  a  bridge,  and  an 
action  in  respect  thereto,  see  III.  Packet  Co.  v.  Peoria  Bridge  Assoc., 
38  111.  467;  Miss.  River  Bridge  Co.  v.  Loner yan,  91  111.  508,  516. 

12446.  Town  responsible,  if  it  makes  such  a  bridge  as  will  obstruct 
the  free  navigation  of  the  stream.  Town  of  Harlem  v.  Emmert,  41 
111.  319. 


158  BAILROADS,  WAREHOUSES, 


OF  THE  USE  OF  HIGHWAYS. 

1245.  GRANT  OF  USE — whether  exclusive,  or  joint  use.    A  grant  of 
power  to  a  railway  company  to  construct  its  road  upon,  or  across  any 
highway  its  route  may  intersect,  the  corporation  to  restore  the  same 
to  its  former  state,  or  so  as  not  to  impair  its  usefulness,  is  equivalent 
to  allowing  a  joint  use  of  the  highway  by  the  company  with  the  pub- 
lic, protecting  its  use  as  an  ordinary  highway  against  any  impairment. 
It  does  not  authorize  a  use  to  the  exclusion  of  ordinary  travel.    P.,  Ft. 
W.  &  Ch.  R.  R.  v.  Reich,  101  111.  157. 

1246.  GRANT  or  USE— statute  authorizing  construed.    %  26  of  the 
act  of  1849,  authorizing  county  or  town  officers  haying  charge  of  lands 
belonging  to  their  county  or  town,  to  grant  the  right  of  way  over  the 
same  to  railroad  corporations,  has  application  only  to  lands  which 
belong  to  counties  or  towns  as  owners  thereof,  and  not  to  lands  in 
which  they  hold  the  nominal  title  only  for  a  prescribed  public  use, 
such  as  for  a  street  or  a  highway.    76. 

1247.  The  commissioners  of  highways  of  a  town,  having  no  title  to 
an  avenue  or  public  highway,  are  powerless  to  grant  the  same  to  a 
railway  company,  by  deed,  so  as  to  pass  an  exclusive  right  to  its  use, 
and  a  deed  by  them  attempting  to  grant  such  right,  is  void.    Ib. 

1247a.  EIGHT  TO  USE  or  HIGHWAY— duty  as  to  public,  travel.  A 
railway  corporation  may  take  possession  of  such  part  of  any  public 
road  as  may  be  within  the  limits  of  the  right  of  way,  and  may  con- 
struct its  railway  across  any  established  road,  whenever  it  is  necessary 
to  do  so;  but  the  railway  must  be  so  constructed  that  it  will  not  impede 
the  passage  or  transportation  of  persons  or  property  along  the  road. 
If  the  corporation  finds  it  necessary  to  appropriate  a  public  road,  or 
any  portion  of  it,  in  such  a  manner,  or  to  such  an  extent,  that  it  is  no 
longer  fully  available  for  its  original  use,  a  duty  arises  for  the  corpo- 
ration forthwith,  at  its  own  expense,  to  change  its  site  and  to  recon- 
struct the  road  on  the  most  favorable  location  in  as  perfect  a  manner 
as  the  original  road,  for  the  public.  Commonwealth  v.  Penn.  R.  R. 
Opinion  of  Sup.  Court  of  Pa.  Filed  Jan.  3, 1888.  20  Ch.  Legal  News,  p. 
284. 

USE  OF  STREETS. 

1248.  TITLE  TO  STREETS— vested  in  corporation.    Where  a  city 
or  town  is  laid  out  by  plat  under  the  statute,  the  fee  or  legal  title  to 
the  streets,  indicated  on  the  plat,  is  vested  in  the  corporation  for  the 
use  of  the  public.    Canal  Trustees  v.  Havens,  11  111.  554;  Moses  v.  P., 
Ft.  W.  &  Ch.  R.  R.,  21  111.  516;  Belleville  v.  Stookey,  23  111.  441;   /.,  B. 
&  W.  R.  R.  v.  Hartley,  67  111.  439;   C.  &  V.  R.  R.  v.  People,  92  111.  170; 
People  v.  Walsh,  96  111.  232. 

1249  DEDICATION  or — acceptance  necessary.  To  make  a  com- 
plete dedication  of  streets  and  alleys  by  a  town  plat,  so  as  to  pass  the 
title  to  the  corporation,  there  must  be  some  act  showing  an  accept- 
ance. Until  acceptance  the  fee  remains  with  the  original  proprietor. 
Hamilton  v.  C.,  B.  &  Q.  R.  R.  --111.  — .  Filed  March  28,  1888. 

1250.  EIGHT  TO  USE  STREETS  FOR.  The  use  of  steam  as  a  motive 
power  along  the  streets  of  a  city  may  be  granted.  Moses  v.  P.,  F.  W. 
&  Ch.  R.  R.,  21  111.  516.  It  is  a  legitimate  use  of  a  street  or  highway 
to  allow  a  railroad  track  to  be  laid  in  it.  Murphy  v.  Chicago,  29  111. 
279.  As  to  power  of  cities  over  their  streets  and  liability  for  injury 
from  change  of  grade,  see  Roberts  v.  Chicago,  26  111.  249;  Nevins  v. 
Peoria,  41  111.  502;  Quincy  v.  Jones,  76  111.  231;  Stack  v.  E.  St.  Louis, 
85  111.  377;  Chicago  v.  Brophy,  79  111.  277;  Shawneetown  v.  Mason,  82 


AND  EMINENT  DOMAIN.  159 


111,  337;  Aurora  v.  Gillett,  56  111.  132;  Aurora  v.  Reed,  57  111.  29;  Dixon 
v.  Baker,  65  111.  518;  Alton  v.  Hope,  68  111.  167. 

1251.  SAME — charter  construed.    Authority  by  a  charter  to  con- 
struct a  railroadjfrom  V.  to,  and  into  the  city  of  C.,  with  the  general 
power  to  cross  any  road  or  highway  on  the  route,  only  gives  jsuch 
power  outside  of  the  corporate  limits  of  C.    It  cannot  by  any  fair 
intendment  be  held  as  a  grant  of  the  use  of  the  streets  of  the  city  for 
railroad  tracks.    C.,  D.  &  V.  R.  R.  v.  Chicago,  121  111.  176. 

1252.  GKANT  OF  BIGHT  TO  LAY  TRACK  IN  STREET — who  may 
question.    Those  having  the  control  of  public  roads  may  authorize 
travel  on  them  by  means  of  railways,  and  where  a  railway  company 
has  constructed  its  track  upon  and  along  a  public  highway,  such  use 
and  possession  is  a  matter  between  the  road  authorities  and  the  com- 
pany, and  the  right  cannot  be  questioned  in  an  action  of  ejectment  by 
the  owner  of  the  land  over  which  the  public  road  has  been  established. 
Edwardsmlle  R.  R.  v.  Sawyer,  92  111.  377. 

1253.  A  city  has  the  power  to  allow  the  construction  of  a  railroad 
upon  or  over  its  streets,  and  the  public  will  be  bound  by  whatever  may 
be  lawfully  done  in  regard  to  the  streets  by  the  city.    C.  &  N.  W  Ry. 
v.  People,  91  111.  251. 

1254.  GRANT  or  USE  or  STREET — how  made— binds  city.  Although 
a  city  charter  may  give  power  to  make  all  ordinances  necessary  and 
proper  to  carry  out  the  express  powers,  the  action  of  a  city  council, 
though  in  the  form  of  a  resolution,  in  connection  with  its  deed,  grant- 
ing the  use  of  streets  for  railroad  tracks,  will  be  a  sufficient  grant  of 
permission  to  so  use  the  streets.    Quincy  v.  C.,  B.  &  Q.  R.  R.,  92  111.  21. 

1255.  Where  a  city  under  a  resolution  adopted,  conveys  a  street 
absolutely  to  a  railway  company,  the  resolution  and  the  deed  will  give 
the  company  the  right  to  construct,  maintain  and  operate  its  track 
upon  the  street,  even  if  invalid  to  pass  the  entire  dominion  over  the 
street;  and  when  such  right  is  exercised,  the  city  cannot  resume  the 
grant  to  the  exclusion  of  the  company.    Ib. 

1256.  GRANT  OF  RIGHT— passes  to  successor  of  grantee.    Where  a 
city,  under  special  authority  of  law,  grants  to  a  railway  company  the 
right  to  use  certain  parts  of  its  streets  for  railroad  tracks,  the  grant 
containing  no  clause  restricting  the  use  of  the  streets  to  the  grantee, 
the  right  to  such  use  of  the  streets  may  be  transferred  to  another  rail- 
way company,  which  is  authorized  by  law  to  acquire  and  succeed  to  all 
the  property,  &c.,  of  the  former  company.    Quincy  v.  C.,  B.  &  Q.  R. 
R.,  94  111.  537. 

1257.  LOCATION  IN  CITIES — limited  to  assent  of  city  authorities. 
The  fourth  clause  of  this  section  gives  the  company  authority  to  select 
its  own  route  and  fix  its  termini;  but  this  is  limited  by  the  fifth 
clause,  providing  that  a  railroad  shall  not  be  laid  on  or  across  any 
street  without  the  assent  of  the  municipality.    This  clause  excludes 
railways  from  cities,  except  with  the  assent  of  their  councils.  Hichey 
v.  Ch.  &  W.  Ind.  R.  R.,  6  Bradw.  172. 

1258.  POWER  OF  CITY  TO  REGULATE — delegation  of  power.  Cities 
have  full  power  to  regulate  the  location  and  use  of  railroad  tracks 
within  their  limits,  and  this  power  cannot  be  delegated.    Ordinances 
granting  permission  to  construct  tracks  in  streets  must  definitely  fix 
the  location  and  termini.    Ordinance  held  void  for  uncertainty  in  this 
respect.    Ib.    Overruled.    See  Ch.  &  W.  Ind.  R.  R.  v.  Dunbar,  100  111. 
110,  and  Chicago  v.  Ch.  &  W.  Ind.  R.  R.,  105  111.  73. 

1258a.  An  ordinance  authorizing  the  corporation  to  allow  other 
companies  to  use  its  tracks  upon  such  terms  as  they  may  agree,  is 
void  as  an  attempted  delegation  of  power.  Ib.  Overruled.  Chicago 


160  EAILROADS,  WAEEHOUSES, 

v.  Ch.  &  W.  Ind.  R.  R.,  105  III.  73;  Ch.  &  W.  Ind.  R.  R.  v.  Dunbar. 
100  111.  110. 

1259.  POWER  TO  BUILD  ROAD  IN  CITY— legislative  recognition  of 
power.  A  provision  of  an  act  amendatory  of  a  charter  of  a  railway 
company,  that  the  rate  of  speed  at  which  its  trains,  &c.,  may  be  run 
in  the  city,  shall  be  under  the  control  of  the  common  council,  is  a 
legislative  recognition  of  its  right  to  construct  its  road  within  the  city 
limits.  McAuley  v.  Col.,  Ch.  &  Ind.  Cent.  Ry.,  83  111.  348. 

1260-  GRANT  BINDING  ON  CITY.  A  city  is  bound  by  its  grant  of 
the  right  to  lay  railroad  tracks  in  streets,  so  as  to  bar  its  recovery  in 
ejectment.  Quincy  v.  C.,  B.  &  Q.  R.  R.,  92  111.  21. 

1261.  ASSENT  OF  CITY — necessary  only  for  use  of  streets.     A  rail- 
way company  organized  under  the  general  law  of  1872,  has  authority 
to  select  its  own  route,  to  lay  out  its  road,  and  to  construct  the  same; 
and  this  power  by  necessary  implication,  carries  with  it  the  power  oi' 
fixing  the  terminal  points  of  the  proposed  road,  subject  only  to  the 
limitation  that  the  construction  upon  or  across  any  street  in  any  city 
must  be  with  the  assent  of  such  city.    Ch.  &  W.  Ind.  R.  R.  v.  Dunbar, 
100  111.  110. 

1261a.  The  lines  selected  for  a  proposed  railroad  may,  without  the 
assent  of  the  city,  cross  streets,  and  the  company  may,  without  such 
assent,  acquire  the  right  of  way  and  construct  its  road  upon  every 
part  of  such  line,  except  the  parts  to  be  upon  or  across  streets.  Ib. 

12616.  SUFFICIENCY  OF  ORDINANCE — to  give  use  of  streets.  A  city 
ordinance  granting  permission  to  a  railway  company  to  construct  and 
operate  a  railroad  within  the  city  limits,  is  not  void  because  it  fails  to 
designate  the  precise  line  upon  which  the  road  may  be  constructed, 
and  omits  to  designate  the  precise  points  at  which  the  road  may  be 
constructed  across  and  upon  the  several  streets  to  be  intersected  by  it. 
Ib. 

1262.  DELEGATION  OF  AUTHORITY.  Permission  granted  by  a  city 
to  a  railway  company  to  construct  its  road  across  streets  at  any  points 
to  be  selected  by  the  company  within  a  given  district,  is  not  a  delega- 
tion to  the  company  of  powers  which  can  only  be  exercised  by  the 
council,  as  the  power  to  locate  the  line  of  the  road  is  given  by  statute 
to  the  railway  company  alone,  and  not  to  the  city  authorities.    The 
city  of  Chicago  has  power  to  make  provision  for  the  location  of  a  rail- 
road within  its  limits,  but  no  power  to  locate.    Ib. 

1262a.  The  mere  existence  of  a  power  in  the  city  council  "to 
provide  for  the  location,  grade  and  crossings  "  of  railroads  within  the 
city,  and  "to  change  the  location,  grade  and  crossings"  of  railroads, 
until  exercised,  is  no  limitation  upon  the  power  of  a  railway  company 
to  select  the  route  and  locate  its  road  within  the  city.  Ib. 

1263.  ASSENT  OF  ADJACENT  LOT-OWNERS.    The  clause  in  the  city 
act  that  "  the  city  council  shall  have  no  power  to  grant  the  use  of,  or 
the  right  to  lay  down  any  railroad  tracks  in  any  street "  of  the  city, 
"  except  upon  petition  of  the  owners  of  the  lands  representing  more 
than  one-half  of  the  frontage  of  the  street,  or  so  much  thereof  as  is 
sought  to  be  used  for  railroad  purposes/'  has  reference  only  to  cases 
where  the  city  may  propose  to  grant  the  privilege  to  a  railroad  com- 
pany to  run  along  a  street  for  a  given  distance,  and  not  to  a  case  where 
the  road  merely  crosses  a  street.    Ib. 

1263a.  CONDITION  TO  GRANT  OF  PERMISSION.  A  provision  in  a 
city  ordinance  that  the  permission  to  construct  a  railroad  within  the 
city  is  upon  condition  that  the  railroad  company  shall  permit  any 
other  railroad  companies,  not  exceeding  two  in  number,  which  have 
not  then  the  right  of  entrance  into  the  city,  to  use  the  main  track  of 
the  road  therein  authorized  to  be  laid,  jointly  with  such  road  so  author- 


AND  EMINENT  DOMAIN.  161 

ized,  does  not  render  the  ordinance  invalid,  as  it  confers  upon  the  rail- 
road company  no  power  not  given  it  by  law,  nor  does  it  deprive  the 
city  of  any  power  whatever.  Ib. 

1264.  LIMITATION  ON  RIGHT  GRANTED — right  to  lease  track.    An 
ordinance  giving  a  railroad  company  license  to  construct  its  track 
along  or  across  the  streets  and  alleys  of  a  city,  upon  the  condition  it 
shall  permit  any  other  companies,  not  exceeding  two  in  number,  to 
use  its  main  track  upon  such  fair  and  equitable  terms  as  may  be  agreed 
upon,  will  not  be  construed  as  prohibiting  the  company  from  leasing 
the  use  of  its  track  to  more  than  two  other  companies.    Such  provision 
is  a  limitation,  not  upon  the  right  of  the  company  to  admit  other  com- 
panies to  a  joint  use  of  its  track,  but  upon  the  exclusive  enjoyment  of 
the  estate  granted  by  the  city.    Chicago  v.  Ch.  &  W.  Ind.  R.  R.t 
105  111.  73. 

1265.  §  20  of  the  charter  of  East  St.  Louis,  authorizing  the  council 
to  make  contracts  with  any  street  or  horse  railroad  company  for  the 
use  of  any  street,  &c.,  upon  the  consent  of  the  owners  of  three-fourths 
of  the  property  per  foot  fronting  on  such  street,  &c.,  applies  exclusively 
to  street  or  horse  railroads,  strictly  so  called,  and  has  no  application  to 
railroads  contemplated  in  the  general  railroad  law.     Wiggins  Ferry 
Co.  v.  East  St.  Louis  Union  Ry.,  107  111.  450. 

1265a.  Under  the  general  law  relating  to  railroads,  it  is  only  neces- 
sary to  procure  the  assent  of  the  municipal  authorities  of  a  city  to 
authorize  a  railroad  company  to  construct  its  track  or  tracks  over  or 
along  a  public  street  therein.  That  act,  as  revised  in  1874,  does  not 
require  the  assent  of  the  abutting  lot-owners,  and  in  the  absence  of 
any  special  statutory  provision  requiring  such  assent,  it  will  not  be 
necessary.  Wiggins  Ferry  Co.  v.  E.  St.  L.  Union  Ry.,  107  111.  450. 

1266.  In  cities,  towns  or  villages  organized  under  the  general  in- 
corporation law,  which  requires  such  assent,  or  under  special  charters 
containing  a  similar  provision  to  that  in  the  general  law,  this  rule 
does  not  apply,  and  the  assent  of  the  requisite  number  of  the  abut- 
ting property  owners  will  be  required  as  well  as  that  of  the  munici- 
pality.   Ib. 

1267.  RIGHT  TO  MAKE  ROAD  IN  CITY  —  charter  construed.    The 
words  "  to  "  and  "  from"  a  place  or  city,  are   construed  to  mean  to  or 
from  a  point  within  the  place  to  or  from  which  a  corporation  is  au- 
thorized to  construct  a  railroad.    Authority  to  construct  and  operate 
a  railroad  from  the  city  of  C.  to  any  point  in  the  town  of  E.,  is  held  to 
authorize  the  location  and  operation  of  the  road  from  any  point  within 
the  city  of  C.    McCartney  v.  Ch.  &  E.  R.  R.,  112  111.  611. 

1268.  Where  a  railway  company  is  authorized  to  build  a  railroad 
from  a  city  to  another  place,  the  fact  it  is  also  empowered  to  contract 
with  a  horse  railroad  company  for  the  joint  or  separate   operation 
of  either  or  both  companies'  roads,  as  may  be  agreed  on,  will  not  op- 
erate as  a  limitation  upon  the  railway  company  in  respect  to  its  en- 
trance into  the  city.    /&. 

1269.  LEGISLATIVE  RECOGNITION  OF  RIGHT.    An  act  of  the  legis- 
lature confirming  a  city  ordinance  granting  the  right  to  lay  track  in 
the  city  will  remove  any  doubt  as  to  the  company's  right  to  construct 
its  road  in  the  city,  and  be  regarded  as  a  recognition  of  the  right.    76. 

1270.  Under  the  9th  and  25th  clauses  of  §  1,  art.  5,  of  the  general 
incorporation  law,  the  common  council  in  cities  incorporated  under 
that  law,  is  vested  with  the  exclusive  control  and  regulation  of  the 
streets,  and  with  the  power  to  direct  and  control  the  location  of  rail- 
road tracks  within  the  limits  of  their  cities;  and  being  inconsistent 
with  the  9th  clause  of  §  1,  art.  5  of  the  amended  charter  of  the  city 

—12 


162  RAILROADS,  WAREHOUSES, 

of  Chicago,  adopted  in  1867,  must  prevail  over  the  latter.     Ch.  Dock 
&  Canal  Co.  v.  Garrity,  115  111.  155. 

1271.  LIMITATION  ON  CITY.    The  power  of  the  city  council  of 
Chicago  to  direct  and  control  the  location  of  railroad  tracks,  is  sub- 
ject to  the  limitation  imposed  by  the  90th  clause  of  §  1,  art.  5,  of  the 
act,  making  a  petition  of  the  owners  of  the  land  representing  more 
than  one-half  the  frontage  of  the  street,  necessary  to  the  grant  of 
the  right  to  lay  a  railway  track  in  any  street  of  the  city,    Ib. 

1272.  That  clause,  is  to  be  construed  as  including  both  corporations 
and  individuals.    The  word  "company"  in  the  clause  must  be  held  to 
embrace  natural  persons  as  well  as  corporations.    Ib. 

1273.  A  city  council  under  the  general  incorporation  act,  may 
grant  to  private  individuals,  or  to  a  private  corporation,  the  right  to 
lay  railroad  tracks  in  the  streets,  connecting  with  public  railway 
tracks,  previously  laid,  and  extending  to  the  manufacturing  estab- 
lishments or  warehouses,  of  those  laying  the  tracks.   In  such  case  the 
tracks  so  laid,  become,  in  legal  contemplation,  part  of  the  railway 
with  which  they  connect,  and  are  open  to  the  public,  and  subject  to 
public  control  in  all  respects  as  other  railway  tracks.    Ch.  Dock  & 
Canal  Co.  v.  Garrity,  115  111.  155. 

1274.  The  use  of  the  streets  of   a  city,  however,  whether  for 
vehicles  drawn  by  animals,  for  riding  upon  animals,  for  foot-men,  or 
for  the  passage  of  railway  cars,  must  be  for  the  public.     No  corpora- 
tion or  individual  can  acquire  an  exclusive  right  to  their  use,  or  for 
merely  private  purposes.    Ib. 

1275.  Railroad  tracks  laid  on  streets  of  a  city,  connected  with  ex- 
isting railroads,  and  extending  to  public  warehouses,  malt  houses  or 
manufacturing  establishments,  or  to  public  wharves  and  landings, 
are  in  their  nature  public,  and  for  the  public  good,  and  all  railroad 
companies  are  required  by  law  to  permit  such  connections  to  be  made 
with  their  tracks.    Ch.  Dock  &  Canal  Co.  v.  Garrity,  115  111.  155. 

1276.  CONSENT  OF  CITY  —  to  construction  of  railway  in  city  — 
repeal.    The  general  railroad  act  of  1849  prohibiting  railroads  from 
entering  cities  without  municipal  consent,  is  wholly  repealed.    Ch.  & 
W.  Ind.  R.  R.  v.  Dunbar,  100  111.  110. 

1277.  TRACK  IN  STREET — when  not  a  nuisance.    A  railroad  track 
laid  upon  a  street  of  a  city  by  authority  of  law,  properly  constructed, 
and  operated  in  a  skillful  and  careful  manner,  is  not,  in  law,  a  nui- 
sance.    Ch.  &  E.  III.  R.  R.  v.  Loeb,  118  111.  203. 

1278.  RIGHT  TO  CROSS  STREETS,  &c.    The  fifth  paragraph  of  §  20 
of  the  railroad  act  of  1872,  is  an  absolute  grant  of  power  by  the  state 
to  railway  companies  to  construct  their  roads  across  any  public  high- 
way.   It  is  only  where  the  railroad  is  to  be  constructed  along  or 
lengthwise  of  a  highway,  that  the  consent  of  the  local  authorities  is 
necessary.    Cook  Co.  v.  Gr.  Western  R.  R.,  119  111.  218;  Ch.  &  W.  Ind. 
R.  R.  v.  Dunbar,  100  111.  110. 

1279.  SAME — who  may  question  right.    The  only  authority  that 
can  call  in  question  the  right  of  a  railway  company  to  construct  its 
track  across  or  along  a  street  or  highway  within  an  incorporated  city 
or  village,  is  such  city  or  village.    The  county  authorities  cannot  even 
question  the  validity  of  an  ordinance  of  a  city  or  village  for  the  con- 
struction of  a  railroad  within  such  city  or  village.    Ib. 

1280.  REGULATING  USE  OF  STREETS— by  whom.  The  act  of  1872, 
relating  to  cities  and  villages,  confers  upon  them  full  authority  to 
regulate  the  use  of  streets,  to  provide  for  and  change  the  location, 
grade  and  crossings  of  railroads,  to  require  railroad  companies  to 
fence  their  roads,  to  construct  cattle  guards  and  crossings  of  streets. 


AND  EMINENT  DOMAIN.  163 

to  keep  the  same  in  repair,  to  maintain  flagmen  at  such  crossings,  to 
compel  the  roads  to  raise  or  lower  their  tracks,  &c.  This  invests 
incorporated  cities  and  villages  with  exclusive  authority  over  the 
matter  of  railroad  crossings  over  streets  and  highways  within  their 
limits,  and  excludes  the  jurisdiction  of  the  county  or  town  authorities. 
Ib.;  Ch.  Dock  &  Canal  Co.  v.  Qurrity,  115  111.  155, 163. 

1281.  GKANT  OF  BIGHT  TO  USE  STREET — must  clearly  appear.    A 
permission  to  a  railway  company  to  occupy  a  public  street  with  rail- 
way tracks,  must  plainly  appear,  and  not  be  left  to  be  derived  by 
doubtful  implication  from  the  generality  of  language  used,  which  does 
not  unmistakably  manifest  the  intention  to  give  such  permission.  Ch., 
Dan.  &  Vin.  R.  R.  v.  Chicago,  121  111.  176. 

1281a.  A  city  ordinance,  after  a  careful  mention  and  specification 
of  what  streets,  might  be  used  by  a  railway  company  in  which  to  lay 
down  its  tracks  and  side  tracks,  contained  a  general  clause  giving 
authority,  also,  to  lay  down  all  such  tracks  "as  may  be  necessary  to 
the  convenient  use  of  any  depot  ground  said  company  may  now  own, 
or  hereafter  acquire  in  the  vicinity  of  or  adjoining  said  line  of  road," 
without  the  specification  of  any  streets:  Held,  that  such  general 
clause  gave  no  authority  in  respect  to  the  use  of  the  streets,  additional 
to  those  which  had  been  specifically  named  in  the  preceding  part  of 
the  ordinance.  Ib. 

12816.  EIGHT  TO  USE  STREETS— charter  construed.  Authority  in 
the.  charter  of  a  railway  company  to  construct  a  railroad  from  V.,  in 
the  state  of  Indiana,  to,  and  into  the  city  of  C.,  with  the  general 
power  to  cross  any  road  or  highway  on  the  route,  is  to  be  held  only 
as  giving  such  power  outside  of  the  corporate  limits  of  the  city  of  C. 
By  no  fair  intendment  can  it  be  held  as  a  grant  of  the  use  of  the 
streets  of  the  city  for  tracks  of  the  road.  Ib. 

1282.  The  grant  in  a  charter  to  a  railway  company  of  the  right  to 
run  its  road  through  a  town,  cannot,  by  any  reasonable  or  fair  intend- 
ment, operate  as  a  grant  of  the  use  of  the  streets,  or  either  of  them,  to 
the  company.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Holler,  82  111.  208. 

1288.  GRANT  OF  USE  CONSTRUED.  An  ordinance  or  resolution 
of  a  city  appropriated  certain  streets  to  a  railway  company,  "so  far  as 
the  said  company  may  require  to  appropriate  the  same  in  crossing 
them,  in  the  construction  of  their  railroad  track,  switches,  turn-tables, 
&c.,  and  other  machinery  and  fixtures  to  be  used  or  employed  by 
them  in  operating  their  said  road,  subject,  however,  to  this  proviso: 
that  the  same  shall  be  occupied  with  as  little  detriment  and  incon- 
venience to  the  public  as  possible,"  and  requiring  the  crossing  to  be  so 
graded  as  to  make  any  embankment  that  should  be  made,  no  obstruc- 
tion: Held,  that  this  was  but  a  provision  for  a  joint  use  with  the 
general  public.  St.  L.,  A.  &  T.  H.  R.  R..  v.  Belleville,  122  111.  376. 

1284.  MUNICIPAL  ASSENT— petataw  of  lot-owners.     Clause  90  of 
§  1  of  art.  5  of  chap.  24,  E.  S.,  provides  that  city  and  village  authori- 
ties shall  have  no  power  to  grant  the  right  to  lay  a  railway  track  in  a 
street  except  upon  petition  of  the  owners  of  the  land,  representing 
more   than  one-half    of   the  frontage   of  the  street,  or    so  much 
thereof  as  is  sought  to  be  used  for  railroad  purposes.    (Ante  151.)    A 
compliance  with  this  clause  is  a  prerequisite  to  the  validity  of  cor- 
porate consent.  Hickey  v.  Ch.  &  W.  Ind.  R.  R.,  6  Bradw.  172.    See  R. 
S.,  chap.  24,  art.  5,  §  1,  clauses  7,  9, 10,  24, 25  and  90. 

1285.  EIGHT  UNDER  CONSENT  OF  CITY.    Where  the  city  has  duly 
granted  such  right  to  a  railway  company,  the  latter  may  build  and 
operate   its   road  without   interference,  subject  to    its  liability  to 
respond  to  abutting  lot-owners  for  all  legal  damages.    Ch.  &  W.  Ind. 


164  RAILROADS,  WAREHOUSES, 

R.  R.  y.Serg,  10  Bradw.  607;  Same  v.  George,  Id.  646;  Same  v.  Phillips, 
Id.  648. 

1286.  DUMMY  RAILROADS— consent  of  property  holders.    Under 
the   act    of  1874    in    relation    to  horse  and   dummy  railroads,  no 
petition  of  the  adjoining  property-owners  is  necessary.    Hunt  v.  Ch. 
&  D.  Ry.,  20  Bradw.  282. 

1287.  RAILROAD  IN  STREETS.  A  city  or  town  cannot  confer  upon 
any  one  an  exclusive  right  to  the  use  of  a  public  street,  thereby  de- 
priving it  of  its  character  of  a  public  highway.    St.  L.,  A.  &  T.  H.  R. 
R.  v.  Belleville,  20  Bradw.  580. 

1288.  LIMITATION  ON  RIGHT  TO  LOCATE  ROAD.  The  power  of  the 
city  council  to  provide  for  the  location  of  railroads  within  its  streets 
is  no  limitation  on  a  railway  company  to  locate  its  road  in  a  city, 
until  it  is  exercised.    Ch.  &W.  Ind.  R.  R.  v.  Dunbar,  100  111.  110. 

1289.  NEW  USE  OF  ROAD  IN  STREET.    Where  a  railway  company 
lays  its  track  in  a  street  of  a  city,  having  the  right  to  construct  a  track 
for  passenger  cars  only,  the  city,  under  chap.  24,  art.  5,  §  1,  clause  90, 
has  no  power  afterwards  to  grant  the  use  of  the  track  tor  the  opera- 
tion of  freight  cars  upon  it,  except  upon  a  petition  of  property-own- 
ers upon  the  street,  as  required  in  the  statute,  and  a  grant  of  the  use 
of  such  track  for  freight  purposes,  without  such  petition,  being  void, 
such  use  is  unlawful  and  a  public  nuisance,  which  the  state  may  cause 
to  be  abated.    McCartney  v.  C.  &  E.  R.  R.,  112  111.  611. 

REMEDY  FOR  IMPROPER  USE  OF  STREETS. 

1290.  INJUNCTION.    Where  the  municipality  granting  the  right  to 
lay  a  railroad  track  in  a  street,  owns  the  fee  of  the  streets,  the  owners 
of  lots  fronting  on  such  streets,  cannot  enjoin  the  laying  of  the  track. 
L,  B.  &  W.  R.  R.  v.  Hartley,  67  111.  439;  Stetson  v.  Ch.  &  Evanston 
R.  R.,  75  111.  74;  Patterson  v.  Ch.  Danv.  &   Vin.,  R.  R.,  75  111.  588; 
C.,  B.  &  Q.  R.  R.  v.  McGinnis,  79  111.  269;  P.  &  R.  I.  Ry.  v.  Scherte,  84 
111.  135;  Truesdale  \.Peoria  Grape  Sugar  Co.  101  111.  561. 

1291.  A  court  of  equity  will  not  assume  jurisdiction  to  control  the 
use  of  a  street  in  an  incorporated  city  by  a  railway  company,  or  the 
manner  in  which  thetrack  is  laid,  or  in  which  the  business  of  the  road 
is  operated,  for  the  reason  that  this  power  is  conferred  by  law  upon  the 
corporate  authorities  of  the  city,  and  the  court  cannot  supervise  the 
exercise  of  such  power  at  the  suit  of  the  people.    Cairo  &  Vincennes 
R.  R.  v.  People,  92  111.  170;  Ch.  &  Pac.  R.  R.  v.  Francis,  70  111.  238. 

1292.  INJUNCTION  will  issue  to  restrain  the  laying  of  track  when 
this  condition  has  not  been  performed,  but  the  complainant  must  show 
some  special  injury  to  his  property.    Hickey  v.  Ch.  &  W.  Ind.  R.  R., 
6  Bradw.  172, 186, 187. 

1293.  BILL  TO  ENJOIN— sufficiency.    A  bill,  to  enjoin  the  laying  of 
a  railroad  track  in  a  street,  averring  that  there  was  no  petition  of  the 
the  property  owners  representing  more  than  one-half  of  the  frontage 
of  the  street,  is  too  broad.    It  should  be  confined  to  so  much  of  the 
street  as  was  sought  for  railroad  purposes.    An  averment  that  no  such 
petition  was  presented  as  the  statute  requires,  is  of  a  conclusion  of 
law,  and  is  not  traversable.    Schuchert  v.  Wabash  Ry.,  10  Bradw.  397. 

HIGHWAY  CROSSINGS. 

1294.  CHANGE  in—equitable  interference.    Where  a  railway  com- 
pany is  authorized  to  change  highways  intersected  by  it,  so  as  to  afford 
a  more  convenient  crossing,  &c.,  the  option  to  change  the  crossing 
will  be  vested  in  the  company,  and  the  exercise  of  such  option  cannot 


AND  EMINENT  DOMAIN.  165 

be  controlled  by  a  court  of  equity,  if  proper  care  and  skill  are  observed. 
I.  C.  R.  R.  v.  Bentley,  64  111.  438. 

1294:a.  Where  a  highway  has  been  changed  under  competent  legal 
authority,  there  being  no  want  of  proper  care  and  skill,  a  court  of 
equity  will  have  no  jurisdiction  to  order  the  same  to  be  restored  to 
its  former  location,  on  the  ground  of  its  being  a  private  nuisance. 
Ib. 

1295.  HIGHWAY  CROSSINGS — duty  to  put  and  keep  in  safe  condi- 
tion.   In  the  absence  of  express  provision  in  its  charter,  a  railway 
company  is  under  obligation  to  leave  every  highway  that  it  crosses  in 
a  safe  condition  for  the  use  of  the  public,  and  where  this  duty  is  im- 
posed by  the  charter,  the  same  duty  will  rest  upon  its  successor.    Peo- 
ple ex  rel  v.  C.  &  A.  R.  R.,  67  111.  118. 

1295a.  SAME — change  in  place  of  intersection.  Where  municipal 
authorities  with  the  assent  of  a  railway  company,  discontinue  a  road 
crossing  considered  dangerous,  and  substitute  another  a  short  distance 
from  the  old  one,  the  change  will  not  exonerate  the  company  from 
keeping  up  such  new  crossing.  76. 

12956.  A  railway  company  will  not  be  relieved  of  its  duty  to  keep 
in  proper  condition  its  intersection  with  highways,  merely  because  of 
a  slight  deflection  of  a  highway  by  the  proper  authorities  so  as  to 
change  the  precise  place  of  crossing.  Ib. 

1296.  APPROACHES  AND  CROSSINGS  OVER  NEW  STREETS.    Where, 
long  after  the  construction  of  a  railroad,  a  street  was  extended  so  as 
to  cross  the  same,  and  the  city  passed  an  ordinance  requiring  the  rail- 
way company  to  make  a  safe  and  proper  crossing  by  grading  the  ap- 
proaches of  the  street  at  the  crossing,  such  duty  not  being  imposed  by 
its  charter  or  any  general  law  in  force  when  the  company  was  created: 
Held,  that  such  burden  could  not  be  imposed  on  the  company  even  by 
the  legislature  without  compensation.    /.  C.  R.  R.,  v.  Bloomington, 
76  111.  447. 

1297.  RESTORING  USE  OF  STREET  CROSSED.    It  is  the  duty  of  a 
railway  company  in  constructing  its  track  across  a  street,  to  restore 
the  street  to  its  former  usefulness,  or  to  such  a  state  as  not  necessarily 
to  impair  its  usefulness,  and  to  keep  such  crossing  in  repair.    P.,  D.  & 
E.  R.  R.  v.  Lyons,  9  Bradw.  350. 

1298.  A  railway  company  is  under  the  statutory  duty,  in  the  con- 
struction of  its  road  across  a  public  highway,  to  restore  the  highway 
to  its  former  state,  or  in  a  sufficient  manner  not  to  impair  its  useful- 
ness.   And  if  a  highway  can  be  restored  in  a  manner  not  to  impair 
its  usefulness  only  by  constructing  the  highway  over  the  railway,  it 
is  the  duty  of  the  company  to  so  restore  it,  and  the  omission  is  a 
breach  of  duty.     C.,  B.  &  Q.  R.  R  v.  Payne,  59  111.  534. 

1299.  GRANT  TO  LAY  TRACK  IN  STREET—  where  the  city  has  only 
an  easement.    Where  the  fee  of  a  street  is  in  the  land-owner  who  ded- 
icated the  same,  the  state  or  city  may  grant  permission  to  a  railway 
company  to  lay  its  track  across  or  along  the  same;  but  the  owner  will 
be  entitled  to  compensation  for  the  additional  burden  placed  upon  the 
land.    /.,  B.  &  W.  R.  R.  v.  Hartley,  67  111.  439;  Stetson  v.  Ch.  &  Evans- 
ton  R.  R.,  75  111.  74. 

1300.  Liability  of  city  for  acts  done  in  street  by  its  permission. 
See  Murphy  v.  Chicago,  29  111.  279*   City  of  Pekin  v.  Winkel,  77  111. 
56;  Stack  v.  East  St.  Louis,  85  111.  377;  Pekin  v.  Srereton,  67  111.  477; 
Quincy  v.  Jones,  76  111.  231.    See  Eminent  Domain. 

IttOOa.  If  the  municipal  authorities  of  a  city  or  town  authorize  a 
structure  upon  a  public  street,  or  other  obstruction,  that  causes  injury 
to  adjacent  lot-owners,  it  will  be  liable  for  the  damages  sustained. 


166  RAILROADS,  WAREHOUSES, 

What  it  does  by  another  it  does  by  itself.    Stack  v.  East  St.  Louis,  85 
111.  377. 

1301.  Liability  of  railway  company  for  injury  to  lot-owners  for 
building  and  operating  railroad  on  adjoining  street  under  license  or 
permission  of  city  or  village  authorities.    St.  L.,  V.  &T.  H.  R.  R.  v. 
Capps,  67  111.  607;  Stone  v.  F.,  P.  &  N.  W.  R.  R.,  68  111.  394;  C.,  B.  &  Q. 
R.  K.  v.  McGinnis,  79  111.  269;  St.  L.,  V.  &  T.  H.  R.  R.  v.  Holler,  82  111. 
208;   Ch.  &  Pac.  R.  R.  v.  Francis,  70  111.  238;  Eberhart  v.  Ch.,  Mil.  & 
St.  P.  Ry.,  70  111.  347;  Ch.,  Mil.  &  St.  P.  Ry.  v.  Hall,  90  111.  42;  P.,  Ft. 
W.  &  Ch.R.  R.  v.  Reich,  101  111.  157. 

1301a.  OBSTRUCTING  STKKETS — at  crossings.  An  ordinance  of  a 
city  prohibiting  railway  companies  from  allowing  their  engines,  cars, 
&c.,  to  stand  or  remain  on  a  traveled  railroad  crossing  used  by  teams 
and  travel  passing  and  repassing,  to  the  hindrance  and  detention  of 
the  same,  is  valid,  and  a  conviction  thereunder  may  be  had  on  proof 
that  cars  were  left  standing  on  a  switch,  leaving  a  space  between 
them  of  only  ten  or  twelve  feet  at  the  crossing,  and  also  another  car 
on  another  switch  opposite  such  open  space  and  about  twelve  feet 
therefrom,  and  that  it  was  dangerous  to  attempt  to  pass  through  with 
a  scary  team.  Great  Western  R.  R.  v.  Decatur,  33  111.  381. 

1302.  If  a  railway  company  unnecessarily  obstructs  the  streets  of 
a  town  with  its  cars,  contrary  to  an  ordinance  of  the  town,  it  will  be 
liable  for  the  penalty  prescribed  for  so  doing.    /.  C.  R.  R.  v.  Galena, 
40  111.  344. 

1303.  A  town  ordinance  that  "  no  person  shall  put  or  cause  to  be 
put  in  any  street,  sidewalk  or  other  public  place  within  the  city  limits, 
any  dust,  dirt,  filth,  shavings  or  other  rubbish  or  obstructions  of  any 
kind,"  is  broad  enough  to  embrace  the  obstruction  of  a  street  by  a 
railroad  company  with  its  cars.    2b. 

1304.  INTERSECTION  AND  CONNECTIONS  WITH  OTHER  RAIL- 
WAYS.    Sixth — To  cross,  intersect,  join  and  unite  its  railways 
with  any  other  railway  before  constructed,  at  any  point  in  its 
route,  and  upon  the  grounds  of  such  other  railway  company, 
with  the  necessary  turnouts,  sidings  and  switches,  and  other 
conveniences,  in  furtherance  of  the  objects  of  its  connections; 
and  every  corporation  whose  railway  is  or  shall  be  hereafter 
intersected  by  any  new  railway,  shall  unite  with  the  corpora- 
tion owning  such  new  railway  in  forming  such  intersections 
and  connections,  and  grant  the  facilities  aforesaid;    and   if 
the  two  corporations  cannot  agree  upon  the  amount  of  com- 
pensation to  be  made  therefor,  or  the  points  and  manner  of 
such  crossings  and  connections,  the  same  shall  be  ascertained 
and  determined  in  manner  prescribed  by  law.     [R.  S.  1887, 
p.  1004,  §  20;  S.  &  C.,  p.  1914,  §  20;  Cothran,  p.  1142,  §  20. 
See  1213  supra.  ] 

1305.  Railway  company  may  condemn  right  of   way  for  itself 
across  right  of  way  of  another  railway  company.    St.  L.,  J.  &  C.  R.  R. 
v.  S.  &  N.  W.  R.  R.,  96  111.  274. 

1306.  Has  no  right  to  take  property  already  devoted  to  public  use 
for  same  public  use.    L.  S.  &  M.  S.  R.  R.  v.  Chicago  &  W.  Ind.  R.  R., 
97  111.  506. 

1307.  If  the  legislature  does  not  prescribe  in  what  manner  one  rail- 
way shall  cross  another,  chancery  has  jurisdiction  in  a  proper  case  to 


AND  EMINENT  DOMAIN.  167 

control  the  matter.    Chicago  &  N.  W.  R.  R.  v.  Chicago  &  Pacific  R. 
R.,  6  Biss.  219. 

1308.  Where  a  railway  company  built  a  side  track  from  its  road, 
connecting  with  a  side  track  of  another  company  leading  to  a  public 
warehouse,  whereby  it  could  reach  such  warehouse  over  a  part  of  the 
track  of  such  other  company,  and  the  circuit  court  enjoined  it  from 
removing  such  connecting  track,  it  was  held,  that  in  view  of  the  stat- 
utory provision  that  every  railroad  corporation  shall  permit  connec- 
tions to  be  made,  there  was  no  error  in  enjoining  the  removal  of  the 
track  at  the  suit  of  the  owners  of  the  warehouse.    Hoyt  v.  C.,  B  &  Q. 
R.  R.,  93  111.  601. 

1309.  EIGHT  TO  CONNECT.    By  the  rules  of  the  common  law,  rail- 
way companies  cannot  be  compelled  to  permit  individuals  to  connect 
side  tracks  of  their  own  with  the  tracks  of  such  companies,  in  order  to 
enable  the  latter  to  carry  grain  to  warehouses  or  elevators  which  have 
been  erected  off  their  lines  of  road.    People  ex  rel  v.  Ch.  &  N.  W.  Ry.. 
i.7111.436. 

1310.  The  owner  of  a  lot  of  ground  in  Chicago,  haying  erected  a 
grain  elevator  thereon,  was  permitted  by  contract  with  a  railway 
company,  to  connect  a  side  track,  extending  from  his  elevator  to  the 
company's  line,  with  its  track.    So  far  as  appeared  the  contract  was 
purely  personal.    Held,  that  a  subsequent  lessee  of  the  elevator  did 
not  succeed  to  any  of  the  rights  of  his  lessor  in  respect  to  such  con- 
tract.   /&. 

1311.  Where  the  city  had,  by  ordinance,  granted  to  the  lessor  the 
privilege  of  laying  down  a  track  along  one  of  its  streets,  in  order  that 
he  might  connect  his  elevator  with  the  line  of  a  railroad,  such  grant 
of  authority  being  made  especially  to  the  lessor,  the  mere  leasing  of 
his  elevator  to  a  third  person  would  not  operate  to  pass  to  the  lessee 
any  of  the  rights  secured  to  the  lessor  by  the  ordinance.    76. 

1312.  A  private  switch  from  a  railroad  to  coal  lands  which  is  not 
owned  by  the  railway  company,  but  by  individuals  for  their  own  pri- 
vate use,  is  not  a  public  highway  within  the  meaning  of  §  12,  art.  11,  of 
the  constitution,  and  therefore  is  not  free  to  all  persons  for  the  trans- 
portation of  their  persons  and  property  thereon.    Ko3lle  v.  Knecht,  99 
111.  396. 

1313.  Contract  between  two  railway  corporations  held  not  a  lease 
or  consolidation,  but  a  contract  of  connection  of  the  two  roads  leaving 
the  domestic  corporation,  the  owner  of  the  road,  its  property,  fran- 
chise, &c.    Archer  v.  T.  H.  &  I.  R.  R.,  102  111.  493. 

1314.  Railroad  tracks  laid  on  the  streets  of  a  city  connected  with 
existing  railroads,  and  extending  to  public  warehouses,  malt  houses  or 
manufactories,  or  to  public  wharves  and  landings,  are  in  their  nature 
public,  and  for  the  public  good,  and  all  railroad  companies  are  required 
by  law  to  permit  such  connections  to  be  made  with  their  tracks.    Ch. 
Dock  &  Canal  Co.  v.  Garrity,  115  111.  155. 

1315.  CONNECTIONS  MEANT.    The  provision  in  the  constitution  of 
Colorado  "that  every  railroad  company  shall  have  the  right  with  its 
road,  to  intersect,  connect  with  or  cross  any  other  railroad,"  only 
implies  a  mechanical  union  of  the  tracks  of  the  roads  so  as  to  admit 
of  the  convenient  passage  of  cars  from  one  to  the  other,  and  does  not 
of  itself  imply  the  right  of  connecting  business  with  business.    A..  T. 
&  8.  F.  R.  R.  v.  D.  &  N.  0.  R.  R.,  110  U.  S.  667. 

1316.  TRANSPORTATION    or    PERSONS   AND  PROPERTY— 
motive  power  used.     Seventh — To  receive  and  convey  persons 
and  property  on  its  railway,  by  the  power  and  force  of  steam 


168  RAILROADS,  WAREHOUSES, 

or  animals,    or   by  any  mechanical  power.      [R.  S.  1887,  p. 
1004,  §  20;  S.  &  C.,  p.  1914,  §  20;  Cothran,  p.  1143,  §  20. 

1317.  The  passage  of  an  ordinance  by  a  city  granting  permission 
to  a  railway  company  to  lay  down  tracks  in  ceitain  streets,  &c.,  which 
is  accepted,  with  a  resolution  of  such  company  that  the  proper  con- 
struction of  the  ordinance  is  that  the  permission  granted  thereby,  was 
to  operate  in  the  city,  cars  with  animal  power  only,  and  that  the  com- 
pany should  not  connect  with  any  other  railroad  on  which  other  power 
is  used,  does  not  create  a  contract  between  the  people  of  the  city  and 
the  railway  company,  to  abandon  for  all  time  to  come  the  use  of  steam 
within  the  city  as  a  motive  power;  but  such  company  may  afterwards, 
on  permission  of  the  city,  use  steam  to  move  its  cars  within  the  city. 
McCartney  v.  C.  &  E.  R.  R.,  112  111.  611. 

1318.  Authority  in  the  charter  of  a  railway  company  to  build 
either  a  horse  railroad  or  a  steam  railroad  within  a  city,  confers  a  con- 
tinuing option  to  use  either  steam  or  animal  power,  or  both,  upon  its 
road,  or  any  part  of  it,  which  may  be  exercised  from  time  to  time. 
Under  it,  the  use  of  either  motive  power  may  be  changed  and  the  other 
substituted  as  the  company  may  see  fit.    76. 

1319.  BUILDINGS,  MACHINERY  AND  FIXTURES — necessary 
to  accommodate  public.     Eighth — To  erect  and  maintain  all 
necessary  and  convenient  buildings  and  stations,  fixtures  and 
machinery,  for  the  construction,  accommodation  and  use  of 
passengers,  freights  and  business  interests,  or  which  may  be 
necessary  for  the  construction  or  operation  of  said  railway. 
[R.  S.  1887,  p.  1005,  §  20;  S.  &  C.,  p.  1914,  §  20;  Cothran,  p. 
1143,  §  20. 

1320.  RULES  AND  REGULATIONS,  AS  TO  TRANSPORTATION— 
compensation  or  charges.     Ninth — To  regulate  the  time  and 
manner  in  which  passengers  and  property  shall  be  trans- 
ported, and  the  compensation  to  be  paid  therefor,  subject, 
nevertheless,  to  the  provisions  of  any  law  that  may  now  or 
hereafter  be  enacted.     [R.  8.  1887,  p.  1005,  §  20;  S.  &  C.,  p. 
1914,  §  20;  Cothran,  p.  1143,  §  20.     See  post  1427, 1460.] 

1321.  RULES  AND  REGULATIONS.    Railway  companies  must  adopt 
proper  rules  for  the  running  of  trains,  and  conform  to  them,  or  be 
responsible  for  the  consequences  of  running  out  of  time,  resulting  in 
collision.    C.,  B.  &  Q.  R.  R.  v.  George,  19  111.  510. 

1322.  Regulation  requiring  a  passenger  on  freight  train  to  buy  a 
ticket  before  entering  the  train  proper.    /.  C.  R.  R.  v.  Button,  42  111.  438 ; 
C.  &  A.  R.  R.  v.  Flagg,  43  111.  364. 

1323.  Company  to  keep  office  open  for  sale  of  tickets  for  a  reason- 
able time  before  and  up  to  the  time  fixed  for  departure  of  trains — not 
up  to  time  of  actual  departure,  and  if  tickets  not  then  procured,  to 
charge  extra  price  on  the  train.    St.  L.,  A.  &  T.  H.  R.  R.  v.  South,  43 
111.  176. 

1324.  Railway  companies  have  the  power  to  make  all  reasonable 
rules  for  the  government  of  their  trains;  and  as  to  certain  classes  of 
trains,  they  may  require  tickets  to  be  purchased  before  entering  the 
train.    C.  &  A.  R.  R.  v.  Flagg,  43  111.  364. 

1325.  A  railway  company  may  expel  a  passenger  from  its  train  at 
a  place  other  than  a  station,  for  the  violation  of  any  reasonable  rule 
other  than  that  of  non-payment  of  fare.    Refusal  to  surrender  ticket 


AND  EMINENT  DOMAIN.  169 

justifies  an  expulsion  at  a  place  other  than  a  station.    I.  C.  R.  JR.  v. 
Whittemore,  43  111.  420. 

1326.  A  rule  adopted  by  a  railroad  company,  requiring  passengers 
to  surrender  their  tickets  to  the  conductor  when  called  for,  is  a  reason- 
able one,  and  may  be  enforced.    Ib. 

1327.  A  railway  company  has  the  right  to  exact  of  its  passengers 
the  observance  of  all  reasonable  rules,  calculated  to  insure  comfort, 
convenience,  good  order  and  behavior,  and  to  secure  the  safety  of  its 
trains,  and  the  proper  conduct  of  its  business  as  a  common  carrier.  Ib. 

1328.  Where  a  passenger  wantonly  disregards  any  reasonable  rule, 
the  obligation  to  transport  him  ceases,  and  the  company  may  expel 
him  from  the  train,  using  no  unnecessary  force  and  not  at  a  dangerous 
or  inconvenient  place.    This  is  a  common  law  right,  and  has  been 
restricted  by  statute  only  to  cases  of  non-payment  of  fare.    Ib. 

1329.  Whatever  rules  tend  to  the  comfort,  order  and  safety  of  the 
passengers  on   a   railroad,  the  company  is  authorized  to  make  and 
enforce.    But  such  rules  must  always  be  reasonable  and  uniform  in 
respect  to  persons.    Ch.  &  N.  W.  Ry.  v.  Williams,  55  111.  185. 

1330.  A  rule  setting  apart  a  car  for  the  exclusive  use  of  ladies,  and 
gentlemen  accompanied  by  ladies,  is  a  reasonable  rule,  and  it  may  be 
enforced.    76. 

1331.  The  mere  fact  that  under  the  rules  and  regulations  of  the 
company,  a  certain'  car  in  the  passenger  train  has  been  designated  for 
the  exclusive  use  of  ladies  and  gentlemen  accompanied  by  ladies,  will 
not  justify  the  exclusion  of  a  colored  woman  from  the  privileges  of 
such  car,  upon  no  other  ground  than  that  of  her  color.    Ib. 

1332.  Under  some  circumstances  it  might  not  be  an  unreasonable 
rule  to  require  colored  persons  to  occupy  separate  seats  in  a  car  fur- 
nished by  the  company,  equally  as  comfortable  and  as  safe  as  those 
furnished  for  other  passengers.    But  in  the  absence  of  a  reasonable 
rule  on  the  subject,  the  company  cannot  lawfully,  from  caprice,  wan- 
tonness or  prejudice,  exclude  a  colored  woman  from  the  ladies'  car, 
merely  on  account  of  her  color.    Ib. 

1333.  A  railroad  company  may   require  that  passengers  procure 
tickets  before  riding  on  freight  trains,  and  conductors  may  expel  from 
the  cars,  at  regular  stations,  such  as  neglect  to  comply  with  the  regula- 
tion.   T.,  P.  &  W.  R.  R.  v.  Patterson,  63  111.  304. 

1334.  Where  a  railway  company  adopts  a  rule  prohibiting  passen- 
gers from  being  carried  on  its  trains,  or  on  its  freight  trains,  without 
the  purchase  of  tickets,  it  must  furnish  convenient  facilities  to  the 
public  by  keeping  open  its  ticket  office  a  reasonable  time  in  advance 
of  the  hour  fixed  by  its  time  table  for  the  departure  of  the  train.     /. 
C.  R.  R.  v.  Johnson,  67  111.  312. 

1335.  It  is  the  duty  of  a  railway  company  to  make  all  reasonable 
and  proper  regulations  for  the  safety  of  its  employes,  and  it  devolves 
on  the  company  when  sued  by  a  servant  for  an  injury  received  while 
in  its  service,  and  negligence  is  shown,  to  show  an  observance  of  this 
duty.    Pittsburgh,  Ft.  Wayne  &  Ch.  Ry.  v.  Powers,  74  111.  341. 

1336.  Where  several  railway  companies  have  provided  in  their 
depot  building,  in  a  large  city,  separate  waiting  rooms  for  ladies  and 
gentlemen,  a  regulation  that  no  gentleman  without  a  lady,  shall  be 
allowed  to  enter  and  remain  in  the  ladies'  room,  is  not  only  reasonable, 
but  absolutely  necessary  to  enable  the  companies  to  discharge  a  duty 
they  owe  the  public  of  protecting  females  while  at  the  depot,  from 
violence  and  insult.    T.,  W.  &  W.  Ry.  v.  Williams,  11  111.  354. 

1337.  A  railway  has  no  power  to  adopt  rules  and  regulations  pro- 
hibiting decently  behaved  persons  from  traveling  on  its  road  who  will 


170  EAILKOADS,  WAREHOUSES, 

pay  their  fare  and  conform  to  all  reasonable  requirements  for  the 
safety  and  comfort  of  passengers.  C.,  B.  &  Q.  R.  R.  v .  Bryan,  90  111. 
126. 

1338.  BORROWING  MONEY — issue  of  bonds  secured  by 
mortgage — conditions  to  validity  of  mortgage — conversion  of 
bonds  into  stock.  Tenth — From  time  to  time,  to  borrow  such 
sums  of  money  as  may  be  necessary  for  completing,  finish- 
ing, improving  or  operating  any  such  railway,  and  to  issue 
and  dispose  of  its  bonds  for  any  amount  so  borrowed,  and  to 
mortgage  its  corporate  property  and  franchises  to  secure  the 
payment  of  any  debt  contracted  by  such  corporation  for  the 
purposes  aforesaid;  but  the  concurrence  of  the  holders  of 
two-thirds  in  amount  of  the  stock  of  such  corporation,  to  be 
expressed  in  the  manner  and  under  all  the  conditions  pro- 
vided in  the  fifteenth  section  of  this  act,  shall  be  necessary 
to  the  validity  of  any  such  mortgage;  and  the  order  or  reso- 
lution for  such  mortgage  shall  be  recorded  as  provided  in 
the  second  section  of  this  act;  and  the  directors  of  such  cor- 
poration shall  be  empowered,  in  pursuance  to  any  such 
order  or  resolution,  to  confer  on  any  holder  of  any  bond  for 
money  so  borrowed,  as  aforesaid,  the  right  to  convert  the 
principal  due  or  owing  thereon  into  stock  of  such  corpora- 
tion, at  any  time  not  exceeding  ten  years  after  the  date  of 
such  bond,  under  such  regulations  as  may  be  provided  in 
the  by-laws  of  such  corporation.  [E.  S.  1887,  p.  1005,  §  20; 
S.  &  C.,  p.  1914,  §  20;  Cothran,  p.  1143,  §  20.  See  post, 
1467,  1468.] 

1339.  Where  a  corporation  receives  money  and  gives  a  mortgage  to 
secure  its  re-payment,  it  cannot  defeat  a  foreclosure  by  denying  the 
authority  of  the  directors  to  procure  the  loan,  nor  from  the  fact  that 
the  bond  given  for  the  loan  may  have  been  the  individual  obligation 
of  the  directors  executing  the  same,  and  not  that  of  the  corpora- 
tion.   Ottawa  Northern  Plank  Road  Co.  v.  Murray,  15  111.  336. 

1340.  CHANGE  OF  POSSESSION.    A  railway  company  gave  a  deed 
of  possession  of  its  road  and  other  property  to  the  trustees,  who, 
without   taking  possession  personally,  hired  the  former  superinten- 
dent  and  other  employes  of  the  road,  to  carry  on  the  business  as 
their  agents  and  servants,  and  put  up  notices  all  along  the  road  of  the 
change  of   management:     Held,  that  such  change  of  possession  was 
sufficient.    Palmer  v.  Forbes,  23  111.  301, 314. 

1341.  Where  a  mortgage  or  deed  of  trust  gives  to  the  trustees 
therein,  the  power  to  use  and  run  the  railroad,  as  the  agents  or 
attorneys  of  the  company  mortgaging  it,  that  fact  does  not  give 
character  to  the  title  or  possession  of  the  property,  but  only  to  the 
mode  and  manner  of  using  it,  and  a  proper  transfer  under  the  power 
will  cut  off  all  liens,  not  acquired  prior  to  that  transfer.    76. 

1342.  Railroad  companies  can  not  give  mortgages  except  in  pur- 
suance of  a  power  conferred  upon  them  by  their  charters  or  some 
general  statute.    Palmer  v.  Forbes,  23  111.  301,  311. 

1343.  Power  in  a  railway  company  to  mortgage  its  road,  fran- 
chises and  property,  will  not  be  construed  to  authorize  the  mortgagee 
to  take  up  and  sell  the  material  of  which  the  road  is  made,  so  as  to 


AND  EMINENT  DOMAIN.  171 

interfere  with  its  beneficial  use  by  the  public.    Palmer  v.  Forbes,  23 
111.  301. 

1344.  The   authority   to  mortgage   a  railroad,  &c.,  implies   the 
authority  to  sell  the  thing  mortgaged,  and  to  convey  to  the  purchaser 
all  needful  powers  to  use  the  thing  purchased,  in  a  proper  and  bene- 
ficial manner.    Ib. 

1345.  The  personal  property  of  a  railroad  in  possession  of  the 
mortgagor  or  trustee,  is  no  longer  subject  to  be  taken  in  execution 
for  the  general  debts  of  the  company.    Palmer  v.  Forbes,  23  111.  301. 

1346.  Money  of  a  corporation  which  has  been,  in  advance  of  its 
being  earned,  set  apart  by  its  board  of  directors  to  the  payment  of 
interest  on  its  bonds  secured  by  mortgage  or  trust  deed  on  its  road 
and  franchises,  and  to  raise  a  sinking  fund  for  their  redemption,  is 
not  subject  to  garnishee  process  issued  by  a  judgment  creditor  of 
such  corporation.     Galena  &  Ch.  Union  R.  R.  v.  Menzies,  26  111.  121, 
148. 

1347.  Where  a  corporation  has  given  a  mortgage  or  deed  of  trust  of 
all  its  property,  tolls,  incomes,  franchises,  &c.,  to  secure  the  principal 
and  accrued  interest  on  its  bonds,  its  revenues  so  pledged  are  not  liable 
to  garnishment  by  its  judgment  creditors,  after  the  execution  of  such 
mortgage  or  deed  of  trust.    Ib. 

1348.  The  trustees  of  a  railway  company,  if  they  do  business  in  the 
name  of  the  company,  are  liable  to  be  sued  in  that  name,  and  their 
property  is  liable  for  responsibilities  incurred,  while  transacting  the 
business  under  that  name.     Wilkinson  v.  Fleming,  30  111.  353. 

1340.  In  a  suit  to  foreclose  a  railway  mortgage,  the  question  as  to 
the  validity  of  a  contract  of  consolidation,  cannot  be  raised  by  the 
mortgagor  company .  Having  mortgaged  the  property,  it  will  not  be 
permitted  to  deny  its  own  title.  R.  &  M.  R.  R.  v.  F.  L.  &T.  Co.,  49  111. 
331. 

1350.  BY  CONSOLIDATED  COMPANY — effect  on  property  of  either 
company  consolidated.     Where  corporations  created,  one  under  the 
laws  of  Wisconsin  and  one  under  the  laws  of  this  state,  consolidate, 
but  in  so  doing  fail  to  pursue  the  terms  of  their  charters,  and  after- 
wards, by  the  legislature  of  this  state,  the  contract  of  consolidation  is 
confirmed,  and  the  consolidated  company  is  recognized  as  a  corpora- 
tion of  this  state,  a  mortgage  made  in  the  corporate  name  of  both 
companies,  they  being  the  same  in  both  states  and  managed  by  a  com- 
mon board  of  directors,  upon  the  property  of  the  corporation  of  this 
state,  is  a  valid  mortgage  of  the  latter  corporation.    Ib. 

1351.  Where  a  person  takes  the  entire  management  and  control  of 
the  corporations  so  consolidating,  managing  the  same  as  one  company, 
for  the  better  security  and  protection  of  the  mortgagee,  such  person 
thereby  becomes  a  trustee,  not  only  for  the  mortgagee,  but  also  for  the 
mortgage  corporation.    Ib. 

1352.  Where  a  railway  company  executed  its  deed  of  trust  on  its 
franchise  and  railroad,  and  all  property  connected  therewith,  present 
and  prospective,  to  secure  the  payments  of  its  bonds,  but  the  deed  did 
not  mention  corporate  subscriptions  made  to  its  capital  stock,  it  was 
held,  that  the  purchasers  under  the  same,  acquired  no  claim  to  county 
bonds  issued  under  a  subscription  made  by  a  county.    Morgan  Co.  v. 
Thomas,  76  111.  120. 

1353.  The  earnings  of  a  railway  company  from  the  operation  of  its 
road,  though  mortgaged  to  secure  the  payment  of  certain  bonds,  before 
foreclosure  or  possession  taken  by  the  trustee,  may  be  reached  by  other 
creditors  of  the  company,  and  are  liable  to  garnishment,  when  the 
mortgage  provides  that,  until  default,  the  company  may  possess  and 


172  EAILROADS,  WAREHOUSES, 

use  the  road,  &c.,  and  receive  the  rents,  profits  and  increase  arising 
therefrom.    M.  V.  &  W.  Ry.  v.  U.  S.  Express  Co.,  81  111.  534. 

1354.  FORECLOSURE— sale  of  part  of  road.  If  a  mortgage  is  given 
by  a  railway  company  upon  its  entire  road  to  secure  bonds  issued  by 
it,  and  it  procures  the  grading  of  only  a  part  of  the  road  in  the  mid- 
dle, and  then  abandons  the  work,  leaving  each  end  of  the  road  unfin- 
ished and  another  company  organizes  and  completes  the  road,  on  bill 
to  foreclose  the  mortgage  given  by  the  first  company,  it  is  erroneous  to 
decree  a  sale  of  the  middle  portion  of  the  road,  leaving  the  two  ends 
worthless.  If  any  foreclosure  can  be  had  the  entire  road  must  be  sold, 
and  the  proceeds  distributed  as  between  the  bondholders  of  the  origi- 
nal company  and  the  new  company  in  the  proportion  which  the  work 
done  by  the  first  company  bears  to  the  cost  or  value  of  the  entire  road 
as  completed.  C.,  D.  &  V.  Ry.  v.  Lcewenthal,  93  111.  433. 

1356.  TITLE  NECESSARY  TO  SUPPORT.  Where  a  railway  company 
executing  a  mortgage  upon  its  road  as  contemplated,  has  no  legal  title 
to  any  of  the  right  of  way,  but  only  contracts  for  a  small  portion 
thereof,  to  be  conveyed  upon  conditions,  which  it  never  performs  or 
has  agreed  to  perform,  and  a  new  company  is  organized  which  builds 
the  road  and  acquires  the  legal  title  to  most  of  the  right  of  way  and 
is  equitably  entitled  to  the  balance,  no  decree  can  be  sustained  under 
the  mortgage  as  against  the  new  company  for  the  sale  of  its  property. 
The  mortgage  creditors  of  such  original  company,  have  no  rights 
superior  to  those  of  that  company,  and  it  has  no  such  interest  or  title 
in  the  road  as  can  be  subjected  to  sale  under  the  mortgage.  Ib. 

1356.  Where  a  railway  is,  by  its  charter,  authorized  to  borrow 
money  and  mortgage  the  whole  or  any  part  of  its  road,  property  or 
income  then  existing,  or  thereafter  to  be  acquired,  the  company  may 
not  only  mortgage  its  present  property  and  rights,  but  such  as  it  may 
thereafter  acquire,  and  such  after-acquired  property  will  be  subject  to 
be  sold  on  foreclosure;  and  this  seems  to  be  the  rule  independent  of 
the  authority  given  in  the  charter.    Quincy  v.  C.,  B.  &  Q.  R.  R.,  94 
111.  537. 

1357.  PROOF  or  AUTHORITY  TO  MAKE.    The  execution  of  a  mort- 
gage under  the  seal  of  a  corporation,  regular  on  its  face,  and  by  the 
properly  constituted  officers,  is  prima  facie  evidence  that  the  mortgage 
was  executed  by  the  authority  of  the  corporation,  and  parties  objecting, 
take  on  themselves  the  burden  of  proving  it  was  not  so  executed. 
Wood  v.  Whelen,  93  111.  153. 

1 358.  BONDS— convertible  into  stock— validity.    The  fact  that  bonds 
of  a  corporation  secured  by  mortgage  contain  a  provision  that  they 
are  convertible  into  stock  at  the  option  of  the  holder,  whereby  the 
capital  stock  may  be  increased  without  the  assent  of  the  stockholders, 
will  not  excuse  the  company  from  paying  the  money  it  obtained  on 
the  faith  of  such  bonds,  and  will  not  affect  their  validity  as  binding 
obligations  on  the  company.     Wood  v.  Whelen,  93  111.  153. 

1359.  IMPLIED  POWER  TO  BORROW  MONEY.    A  private  corpora- 
tion without  any  express  authority  in  its  charter,  may  borrow  money 
for  the  promotion  of  the  objects  of  its  creation,  and  may  secure  the 
same  on  its  property,  by  mortgage  or  otherwise,  as  being  within  its 
implied  or  incidental  powers;  and  such  corporation  will  be  estopped 
to  deny  its  authority  to  pledge  its  property  real  or  personal,  or  both, 
for  the  payment  of  the  money.    Ib. 

1360.  Under  the  statute  authorizing  a  railway  company  to  borrow 
money  for  certain  purposes,  to  dispose  of  its  bonds  for  the  sum  so  bor- 
rowed, and  to  mortgage  its  property  and  franchises  to  secure  the  same, 
upon  the  concurrence  of  the  holders  of  two-thirds  in  amount  of  stock 
of  such  corporation,  to  be  expressed  at  a  meeting  of  stockholders,  to  be 


AND  EMINENT  DOMAIN.  173 

called  by  the  directors,  who  are  to  give  notice,  &c.,  a  resolution  of  the 
directors  at  a  directors'  meeting  authorizing  and  directing  the  execution 
of  a  mortgage  for  a  loan,  it  being  shown  that  they  were  the  only 
stockholders,  except  one,  and  that  all  the  stockholders  assented  to  the 
making  of  the  mortgage,  while  not  a  literal  compliance  with  the  law, 
is  a  substantial  compliance  with  its  spirit,  and  the  mortgage  will  be 
held  good.  Thomas  v.  Citizens'  Horse  Ry.,  104  111.  462. 

1361.  The  statute  requires  the  concurrence  of  the  holders  of  two- 
thirds  in  amount  of  the  stock  of  the  corporation  to  the  proposition  to 
borrow  money  and  mortgage  the  corporate  property.  In  such  case 
whether  the  stockholders  received  such  a  notice  of  the  meeting  as  the 
statute  requires,  is  a  matter  of  no  importance,  if  they  met  and  acted 
upon  the  question.  This  action  is  as  binding  as  if  they  had  the  proper 
notice.  Thomas  v.  Citizens'  Horse  Ry.,  104  111.  462. 

1862.  Under  a  statute  requiring  the  concurrence  of  the  holders  of 
two-thirds  of  the  stock  of  a  corporation  to  the  mortgage  of  the  corpor- 
ate property  for  a  loan  of  money,  to  be  expressed  at  a  meeting  of  the 
stockholders  called  by  the  directors  for  that  purpose,  a  meeting  of  the 
directors,  who  are  the  only  stockholders,  except  one,  at  which  all 
assent  to  the  proposition,  is  in  effect  a  meeting  of  the  stockholders, 
and  the  act  of  the  directors  that  of  the  stockholders.  The  require- 
ment of  the  concurrence  of  the  holders  of  two-thirds  of  the  stock  is 
intended  for  the  protection  of  the  stockholders*  and  is  a  matter  in 
which  the  public  have  no  interest.  Ib. 

1363.  ESTOPPEL.    Where  power  is  conferred  upon  a  corporation 
to  borrow  money,  and  secure  the  same  by  mortgage  on  its  property, 
such   corporation  after  having  received  the  loan  on  the  security  of  its 
mortgage,  will  not  be  allowed  to  avoid  liability  by  questioning  its 
power  to  make  the  mortgage,  or  showing  a  defective  execution  of  the 
power  conferred  upon  it.    Thomas  v.  Citizens'  Horse  Ry.,  104  111.  462. 

1364.  Even  if  the  directors  of  a   private  corporation  have   no 
authority  to  borrow  money  and  mortgage  its  real  estate  for  its  repay- 
ment, yet  if  the  stockholders  ratify  their  action  by  approving  the 
minutes  of  their  proceedings  before  the  loan  is  effected,  and  afterwards 
receive  the  benefit  of  the  loan  and  pay  interest  thereon,  the  stockhold- 
ers will  be  estopped  from  questioning  the   authority  of  the  directors 
on  bill  to  foreclose  the  mortgage.  Aurora  Agricultural  and  Hort.  Soc. 
v.  Paddock,  80  111.  263. 

1365.  IMPLIED  POWER,—  to  mortgage.    The  power  to  mortgage, 
when  not  expressly  given  or  denied  to  a  private  corporation,  will  be 
regarded  as  an  incident  to  the  power  to  acquire  and  hold  real  estate 
and  to  make  contracts.    Aurora  Agl.  &  Hort.  Soc.  v.  Paddock,  80  111 . 
263. 

1366 .  Or  CHATTELS.    A  mortgage  or  deed  of  trust  by  a  railway  cor- 
poration, embracing  all  its  real  and  personal  property  ,with  its  franchise, 
made  in  pursuance  of  express  authority  in  its  charter,  and  recorded  in 
each  county  through  which  the  road  passes,  will  create  a  valid  and 
binding  lien  on  its  personal  as  well  as  its  real  property,  notwithstand- 
ing it  has  not  been  acknowledged  in  accordance  with  the  requirements 
of  the  chattel  martgajze  act.    That  act  has  no  application  to  railroad 
mortgages.    Cooper  v.  Corbin,  105  111.  224.    On  this  point  see  Palmer 
v.  Forbes,  23  111.  301;  Hunt  v.  Bullock,  23  111.  320;  Titus  v.  Mabee,  25 
111.  257;  Titus  v.  Ginheimer,  27  111.  462;  Peoria  &  Springfield  R.  R.  v. 
Thompson,  103  111.  187. 

1367.  As  to  retiring  first  issue  of  bonds,  with  a  new  series,  and  ex- 
changing bonds  for  lots  mortgaged,  released  of  the  mortgage,  &c.,  see 
Chicago  &  Great  Western  R.  R.  Land  Co.  v.  Peck,  112  111.  408. 

1368.  The  power  of  a  railroad  corporation  to  sell  and  transfer 


174  RAILROADS,  WAREHOUSES, 

promissory  notes  and  choses  in  action,  does  not  include  the  power  to 
mortgage  them.  Morris  v.  Cheney.  51  111.  451.  See  also  Hatcher  v. 
T.,  W.  &  W.  R.  R.,  62  111.  477. 

1369.  ROLLING  STOCK  AND  MOVABLE  PROPERTY— person- 
al?/. §  20.  The  rolling  stock  and  all  other  movable  prop- 
erty belonging  to  any  such  corporation,  shall  be  considered 
personal  property,  and  shall  be  liable  to  execution  and  sale, 
in  the  same  manner  as  the  personal  property  of  individuals. 
[K.  S.  1887,  p.  1005,  §  21;  S.  &  C.,  p.  1915,  §  21;  Cothran,  p. 
1143,  §  21.  See  ante  62-66.  J 

1370.  Prior  to  the  adoption  of  the  constitution  of  1870  railway,  cars 
or  rolling  stock  of  a  railway  company  were  held  to  be  real  estate. 
Palmer  v.  Forbes,  23  111.  301;  Titus  v.  Mabee,  25  111.  257;  Titus  v.  Gin- 
heimer,  27  111.  462;  Fahs  v.  Roberts,  54  111.  192, 194;  Minnesota  Co.  v. 
St.  Paul  Co.,  2  Wall.  645. 

1371.  A  railroad  track  is  real  estate.    S.  &  M.  R.  R.  v.  Morgan  Co., 
14  111.  163.    See  ante  62. 

1372.  Fuel,  office  furniture,  material  for  lights  and  all  other  de- 
tached property  of  that  kind,  not  like  road  equipments,  designed  for 
the  continued  use  of  the  road,  is  personalty.    Hunt  \.  Bullock,  23  111. 
320. 

1373.  The  act  of  Feb.  14,  1855,  directing  that  the  track  and  super- 
structure of  a  railroad  be  known  as  "fixed  and  stationary  personal 
property,"  has  reference  only  to  the  collection  of  the  revenue,  and  did 
not  change  the  nature  of  this  property  for  other  purposes.    Maus  v. 
L.,  P.  &  B.  R.  R.,  27  111.  77. 

1374.  The  land  constituting  the  right  of  way  of  a  railroad,  with 
the  ties,  rails,  &c.,  in  place  on  the  track,  turnouts,  depot  grounds  and 
the  buildings  on  the  same,  are  real  estate,  but  the  rolling  stock  is 
made  by  statute  for  the  purposes  of  taxation,  personal  property. 
Union  Trust  Co.  v.  Weber,  96  111.  346;  revenue  act  of  1872,  §  44,  p.  14; 
S.  &  C.,  2043. 

1375.  Held,  in  1870,  that  cord-wood  of  a  railway  company  was 
subject  to  levy  and  sale  on  execution,  while  rails  and  bridge  timber 
for  repairing  the  road  were  not.    Fahs  v.  Roberts,  54  111.  192. 

1375a.  ROLLING  STOCK — real  estate  for  purpose  of  mortgage  and 
conveyance.  The  rolling  stock  of  a  railroad  is  a  part  of  the  realty,  so 
as  to  pass  by  a  mortgage  or  conveyance  of  the  road.  Mich.  C.  R.  R.  v. 
Ch.  &  Mich.  L.  S.  R.  R.,  1  Bradw.  399,  409. 

13756.  Before  the  constitution  of  1870  a  freight  car  on  the  road, 
side  track  or  turntable  of  the  company  was  realty,  and  like  timber, 
fruit  trees  and  buildings,  only  became  personalty,  when  detached  from 
the  realty  by  the  owner.  Titus  v.  Mabee,  25  111.  257,  261. 

1376.  CAPITAL  STOCK  AND  BONDS  —  limitation  on  issue 
—fictitious   increase  of.      §  21.    No   such   corporation   shall 
issue  any  stock  or  bonds,  except  for  money,  labor  or  property 
actually  received  and  applied  to  the  purposes  for  which  such 
corporation  was  organized.     All  stock  dividends,  and  other 
fictitious  increase  of  the  capital  stock  or  indebtedness  of  any 
such  corporation,  shall  be  void.     [R.  S.  1887,  p.  1005,  §22; 
S.  &  C.,  p.  1915,  §  22;  Cothran,  p.  1143,  §  22.  J 

1377.  An  agreement  to  subscribe  a  certain  amount  of  stock  when 
books  are  opened  does  not  make  the  party  so  agreeing  a  stockholder 


AND  EMINENT  DOMAIN.  175 

and  as  such  liable  to  calls.  His  failure  to  subscribe  does  not  make 
him  liable  for  the  value  of  the  stock  he  agreed  to  take.  Thrasher  v. 
Pike  County  R.  R.,  25  111.  393. 

1378.  FRAUDULENT  issu^  OF.     If  the   directors  of   a   railway 
company  gratuitously  give  away  certificates  of  stock,  being  a  major 
part  thereof,  to  contractors  building  the  road,  for  the  purpose  of  giv- 
ing them  a  controlling  influence  in  the  election  of  officers  and  the 
management  of  the  road,  a  court  of  equity  will  declare  the  same 
void,  especially  where  a  part  of  the  directors  are  interested  in  the 
contract  with  1he  contractors.     &.,  C.  &  S.  R.  R.  v.  Kelly,  11  111.  426; 
People  ex  rel.  v.  Logan  County,  63  111.  374. 

1379.  The  fact  that  a  railway  company  has  fraudulently  encum- 
bered its  road  or  given  a  lease  thereon,  so  as  to  lessen  the  value  of  the 
stock,  or  issued  a  large  amount  of  stock  to  the  lessee  of  the  road,  is 
no  defense  against  an  application  to  compel  a  county  to  subscribe  a 
sum  voted  by  the  people  at  a  legal  election.     People  ex  rel.  v.  Logan 
County,  63  111.  374. 

1380.  If  the  directors  of  a  railway  company  gratuitously  gives 
another  company  to  whom  it  has  leased  its  road  a  large  amount  of 
stock,  or  gives  such  stock  for  the  fraudulent  purpose  of  depriving 
the  stockholders  of  dividends,  or  of  destroying  the  value  of  their  shares, 
or  to  prevent  them  from  exercising  their  legal  power  of  control  over 
the  road  in  the  election  of  directors,  or  otherwise,  a  court  of  equity 
will  afford  relief.    Ib. 

1381.  STOCK  WHEN  VOID.    Stock  issued  in  violation  of  the  law 
under  which  the  company  is  incorporated,  is  illegal  and  void,  and  the 
corporation  cannot  be  required  to  transfer  the  same  upon  its  books, 
notwithstanding  it  may  have  been  issued  with  the  consent  of  all  the 
stockholders  of  the  company  at  the  time.      People  ex  rel.  v.  Sterling 
Burial  Case  Mfg.  Co.,  82  111.  457. 

1382.  FRAUDULENT  ISSUE  or  STOCK.    Where  a  stock-yard  com- 
pany was  organized  by  the  officers  of  a  railway  company  and  others, 
and  the  only  means  put  into  the  same  was  by  the  railroad  company, 
through  its  officers,  who  also  controlled  the  stock-yard  company,  and  the 
latter  company  issued  stock  to  the  extent  of  its  charter,  a  portion  of 
which  was  used  as  a  corruption  fund,  and  the  balance  divided  between 
certain  members  of  the  company,  they  paying  nothing  therefor,  it  was 
held,  that  the  issue  of  the  stock  was  in  violation  of  law  and  in  fraud 
of  the  rights  of  the  stockholders  of  the  railway  company,  and  vested 
in  the  recipients  of  the  same  no  rights  which  a  court  of  equity  would 
enforce  or  protect.    Tobey  v.  Robinson,  99  111.  222. 

1383.  The  object  of  §  13,  art.  11,  of  the  present  constitution  in  pro- 
viding that,  "no  railroad  shall  issue  any  stock  or  bonds,  except  for 
money,  labor  or  property  actually  received  and  applied  to  the  pur- 
poses for  which  such  corporation  was  created,"  and  that  "all  stocks, 
dividends  and  other  fictitious  increase  of  the  capital  stock  or  indebted- 
ness of  such  corporation  shall  be  void,"  was  to  prevent  reckless  and 
unscrupulous  speculators,  under  the  guise  or  pretense  of  building  a 
railroad,  or  of  accomplishing  some  other  legitimate  corporate  pur- 
pose, from  fraudulently  issuing  and  putting  upon  the  market,  bonds 
or  stocks  that  do  not,  and  are  not  intended  to  represent  money  or 
property  of  any  kind,  either  in  possession  or  in  expectancy,  the  stock 
or  bonds  in  such  cases  being  entirely  fictitious.    Peoria  &  Springfield 
R.  R.  v.  Thompson,  103  111.  187. 

1384.  Where  one  for  a  present  consideration,  in  good  faith,  pur- 
chases bonds  or  stocks  in  the  regular  course  of  business  from  a  rail- 
way company,  and  such  consideration  is  accepted  by  the  proper  officer 
of  the  company,  and  nothing  appears  to  show  that  it  is  to  be  used  or 


176  EAILROADS,  WAREHOUSES, 

applied  to  other  than  legitimate  corporate  purposes,  such  bonds  or 
stocks  when  thus  issued  will  be  regarded  as  having  been  issued  for 
money,  labor  or  property,  "actually  received  and  applied"  within  the 
meaning  of  the  constitutional  provision.  Ib. 

1385.  ESTOPPEL.  Although  a  contract  entered  into  by  the  agents 
or  officers  of  a  private  corporation,  is  ultra  vires,  and  not  binding 
while  executory,  yet  if  the  company  permits  the  other  party  without 
objection  to  go  on  and  perform  the  contract,  and  it  thereby  obtains 
and  appropriates  to  its  own  use,  money,  property  or  labor  in  further- 
ance of  some  legitimate  corporate  purpose,  it  will  be  estopped  from 
denying  its  liability  on  such  contract.  Ib. 

1385a.  DIVIDENDS  —  to  be  general.  The  dividends  declared  must 
be  general  on  all  the  stock,  so  that  each  shareholder  may  receive  his 
proportionate  share.  Ryder  v.  Alton  &  Sang.  R.  R.,  13  111.  516,  520. 

1385ft.  WHO  MAY  INCREASE.  The  charter  of  a  bank  fixed  its  capi- 
tal stock  at  $100,000,  with  power  to  increase  it  to  $500,000,  without 
providing  by  whom  this  power  should  be  exercised:  Held,  that  the 
board  of  directors,  as  such,  had  no  authority  to  increase  the  capital 
stock  without  the  assent  of  the  shareholders.  Eidman  v.  Bowman. 
58  111.  444. 

1385c.  INCREASE  or  CAPITAL  —  who  entitled  to  shares.  Where 
capital  stock  is  increased  legally,  the  right  to  such  additional  stock 
vests  in  the  original  stockholders,  each  one  to  take  in  proportion  to 
the  amount  held  by  him  of  the  original  stock,  if  he  will  pay  for  it. 
This  right  may  be  waived,  but  if  it  is  not,  the  party  entitled  cannot 
be  deprived  of  it  by  the  board  of  directors  or  otherwise.  Ib. 

1386.  CONSOLIDATION — limitation  on  right.    §  22.     No 
such  corporation  shall  consolidate  its  capital  stock  with  any 
other  railway  owning  a  parallel  or  competing  line.     And  in 
no  case  shall  any  consolidation  take  place,  except  upon  sixty 
days'  notice  thereof  given,  which  notice  shall   be  .given  in 
manner  and  form  as  prescribed  in  the  fifteenth  section  of  this 
act.      [E.  S.  1887,  p.  1005,   §  23;    S.  &  C.,  p.  1915,  §  23; 
Cothran,  p.  1143,  §  23.     See  ante,  67.] 

1387.  All  the  rights  and  powers  vested  in  railway  corporations, 
will,  upon  their  consolidation,  be  conferred  upon  and  united  in  the 
consolidated  company.    The  right  of  one  to  a  municipal  subscription 
passes  to  the  new  company.    Robertson  v.  City  of  Rockford,  21  111. 
451. 

1388.  WITH  FOREIGN  CORPORATION.     Under  the  act  of   1853, 
incorporating  the  Rockton  &  Freeport  Railway  Company,  that  com- 
pany was  authorized  to  consolidate  with  a  corporation  outside  of  this 
state,  and  to  place  the  control  of  the  consolidated  stock  under  the 
control  of  the  board  of  directors  of  the  foreign  company.    Racine  & 
Miss.  R.  R.  v.  Farmers'  Loan  &  Trmt  Co.,  49  111.  331. 

1389.  EFFECT   OF   CONSOLIDATION.     The   consolidation  of   the 
stock  of  a  railway  company  created  by  the  laws  of  Wisconsin,  with 
one  created  by  the  laws  of  this  state,  does  not  constitute  the  cor- 
porations thus  consolidating,  one  corporation  of  both  states,  or  of 
either,  but  the  corporation  of  each  state  continues  a  corporation  of 
the  state  of  its  creation,  although  the  same  persons  as  officers  and 
directors  manage  and  control  both  corporations— as  one  body.    Ib. 

1390.  Defect  in  consolidating  may  be  cured  by  subsequent  legis- 
lation recognizing  consolidated  company.    Ib.,  345;  Mitchell  v.  Deeds, 
49  111.  416. 


AND  EMINENT  DOMAIN.  177 

1391.  LIABILITY   FOB  DEBTS  OF   COMPANIES  UNITED— act  not 
retrospective.    The  act  of  1867,  which  provides  that  in  case  of  consoli- 
dation of  two  or  more  railroad  companies,  the  consolidated  company 
shall  be  liable  for  all  debts  of  each  company  entering  into  the  arrange- 
ment, is  not  retrospective,  but  was  designed  to  apply  to  companies 
which  might  consolidate  after  its  passage.    Hatcher  v.  T.  W.  &  W. 
Ry.,  62  111.  477. 

1392.  A  railway  company  gave  a  deed  of  trust  under  which  its 
road,  property  and  income  was  sold  by  the  trustee  to  parties  who 
organized  a  new  company  under  the  old  name.    Afterwards  under  an 
act  of  the  legislature,  the  president  of  the  old  company  transferred  the 
corporate  franchise  to  the  purchasers,  and  the  old  company  ceased  to 
exist.    Held,  that  the  purchasers  having  acquired  a  valid  title  to  the 
property  of  the  old  corporation  without  liability  for  any  of  its  debfc 
which  were  not  prior  liens,  their  rights  could  not  be  taken  away  or 
impaired  by  subsequent  legislation.    76. 

1393.  DUTY  OF  NEW  CORPORATION  FORMED  BY.   After  consolida- 
tion the  new  company  becomes  liable  to  perform  the  duties  required 
of  the  companies  so  consolidated,  and  if  no  part  of  the  franchise  is 
reserved  to  either  of  the  old  companies,  they  will  not  be  liable  to  the 
public  for  the  performance  of  duties  devolving  upon  the  new  com- 
pany.   Peoria  &  Rock  Island  Ry.  v.  Coal  Valley  Mining  Co.,  68  111. 
489. 

1394.  EVIDENCE  OF  CONSOLIDATION.    In  a  suit  against  a  consoli- 
dated railway  company  upon  promissory  notes  given  by  one  of  the 
original  companies  forming  the  new  one,  copies  of  the  articles  of  con- 
solidation on  file  in  the  office  of  the  secretary  of  state,  duly  certified 
by  the  secretary  of  state  and  authenticated  by  his  seal  of  office,  are 
competent  evidence  to  prove  the  consolidation  the  same  as  the  origi- 
nal articles  would  be.    C..  C.  &  1.  C,  Ry.  v.  Skidmore,  69  111.  566. 

1395.  CONSOLIDATED  COMPANY— in  what  name  to  be  sited.    Where 
a  railroad  company,  after  the  execution  of  promissory  notes,  is  con- 
solidated with  another  company,  and  the  company  thus  formed  as- 
sumes a  new  name,  it  may  be  sued  by  such  new  name,  and  it  will  be 
estopped  from  denying  the  name  by  which  it  is  sued.    Ib. 

1396.  EFFECT  ON  PRIOR  LIABILITIES.    Where  the  articles  of  con- 
solidation of  two  railway  companies  provided  that  the  new  company 
should  assume  the  debts  and  liabilities  of  the  old  companies,  and 
should  assume  and  carry  out  all  their  unexecuted  contracts,  and  the 
act  of  the  legislature  ratifying  avl  confirming  the  consolidation,  saved 
the  rights  and  remedies  of  creditors,  it  was  field,  that  a  person  per- 
forming labor  under  a  contract  with  one  of  the  old  companies,  might 
maintain  an  action  against  the  new  company  to  recover  whatever 
sum  was  due  him  under  his  contract.     Western  Union  R.  R.  v.  Smith, 
75  111.  496. 

1397.  Where  a  new  corporation  is  formed  by  amalgamation  of  two 
or  more  distinct  corporations  into  one,  it  succeeds  to  the  rights  and 
faculties  of  the  several  components,  and  must  as  a  necessary  conse- 
quence, be  subject  to  all  the  conditions  and  duties  imposed  by  the  law 
of  their  creation,  except  in  so  far  as  the  act  allowing  the  consolidation 
may  otherwise  provide.    C.,  R.  I.  &  P.  R.  R.  v.  Moffitt,  75  111.  524. 

1398.  Where  a  railway  company  constructed  a  bridge  across  a 
stream  not  navigable,  but  affording  a  large  volume  of  water,  by  driv- 
ing piles  with  spans  of  only  seventeen  feet,  and  leased  its  road  to  an- 
other company,  which,  while  operating  the  same  as  lessee,  built  a  new 
bridge  at  the  same  place,  constructed  in  the  same  manner,  except  that 
the  spans  were  enlarged  to  fifty  feet,  but  left  the  piles  of   the  old 
bridge  standing,  a  portion  of  the  tops  being  cut  off,  after  which  these 


178  RAILROADS,  WAREHOUSES, 

two  companies  consolidated,  forming  a  new  one,  with  a  different 
name,  the  new  company  continuing  to  operate  the  road  and  use  the 
bridge  in  such  condition:  Held,  that  the  new  company  was  liable  in 
damages  to  a  riparian  owner  above,  whose  land  was  overflowed  and  in- 
jured in  consequence  of  an  obstruction  by  drift  caused  by  the  manner 
in  which  the  bridge  was  built  and  used.  Ib. 

1399.  A  consolidated  railroad  company,  formed  under  legislative 
sanction,  succeeds  to  all  the  rights  conferred  upon  the  several  compa- 
nies thus  united,  by  their  respective  charters,  but  it  is  not  invested 
with  any  greater  or  other  rights  than  were  possessed  by  the  constitu- 
ent companies  forming  the  consolidation.    Ruggles  v.  People,  91  111. 

&OD. 

1400.  WHETHER  LIABLE  TO  TAXES  IN  THIS  STATE.    A  railway 
corporation  formed  under  our  laws  by  the  consolidation  of  other  com- 
panies, one  of  which  was  incorporated  under  the  laws  of  this  state, 
and  the  others  in  other  states,  the  new  or  consolidated  company  is  to 
be  considered  as  incorporated  under  the  laws  of  this  state,  within  the 
meaning  of  §  1  of  the  revenue  act  of  1872,  and  the  capital  stock  of 
such  corporation  in  this  state  is  liable  to  taxation  here.    0.  &  M.  R.  R. 
v.  Weber,  96  111.  443. 

1401.  REMEDY  —  at  law.    Where  a  consolidated  company  by  vir- 
tue of  its  consolidation,  becomes  liable  for  the  debts  of  the  compa- 
nies composing  it,  the  creditor's  remedy  is  complete  and  adequate  at 
law,  and  a  court  of  equity  will  have  no  jurisdiction.    Arbuckle  v.  III. 
Midland  Ry.,  81  111.  429. 

1402.  Amendatory  act  held  a  legislative  recognition  of  the  exist- 
ence of  a  consolidated  company,  and  of  the  name  it  adopted  by  the 
articles  of  consolidation,  amounting  to  a  legislative  ratification  of  the 
consolidation,  &c.    McAuley  v.  C.  C.  &  I.  C.  Ry.,  83  111.  348,  352. 

1403.  POWER  CONSTRUED  AS  TO   LEASING  OR  CONSOLIDATING. 
Under  an  amendment  to  a  railroad  charter  providing  that  the  com- 
pany shall  have  power  to  consolidate  and  construct  its  road  with  any 
other  continuous  line  of  railroad,  either  in  this  state  or  the  state  of  In- 
diana, upon  such  terms  as  may  be  agreed  upon  between  the  companies 
uniting  or  connecting,  and  for  that  purpose  giving  full  power  to  the 
company  to  make  and  execute  such  contracts  with  any  other  compa- 
ny as  will  secure  the  object  cf  such  consolidation,  or  connection,  the 
domestic  corporation  can  only  do  one  of  two  things:  —  either  consoli- 
date its  road  with  another  railroad  in  this  or  the  state  of  Indiana,  or 
make  an  agreement  for  connection  with  such  road,  so  as  to  secure  a 
continuous  line.    Under  such  law  it  has  no  power  to  lease  its  road  to 
a  foreign  company.    Archer  v.  T.  H.  &  I.  R.  R.,  102  111.  493. 

1404.  CONTRACT — whether  a  consolidation  or  agreement  for  con- 
nection.   A  contract  between  a  railway  company  of  this  state  and  one 
of  the  state  of  Indiana,  provided  that  on  the  completion  of  the  two 
roads  to  the  state  line,  the  latter  company  should  take  charge  of  and 
operate  the  road  in  this  state,  with  its  equipments  for  999  years,  for 
which  it  was  to  be  allowed  65  per  cent,  of  the  gross  receipts  from  all 
traffic  moved  on  the  line,  or  business  done  thereon  as  a  consideration 
for  working  and  maintenance  expenses,  the  remaining  35  per  cent,  to 
be  appropriated:  first  to  the  payment  of  interest  on  the  first  and  sec- 
ond mortgage  bonds  of  the  Illinois  company,  according  to  their  prior- 
ity; and  second,  all  the  surplus  to  be  paid  over  to  the  Illinois  com- 
pany semi-annually,  to  be  disposed  of  by  it  for  the  benefit  of  its  stock- 
holders; also  that  if  the  35  per  cent,  should  not,  for  any  cause  be  suffi- 
cient in  amount  to  protect  the  interest  on  the  mortgage  bonds  and  the 
sinking  fund  therefor  as  they  matured,  together  with  the  payment  of 
taxes  and  proper  cost  of  maintaining  organization,  so  that  the  rights 


AND  EMINENT  DOMAIN.  179 

of  stockholders  might  be  preserved,  then,  in  that  event,  the  lessees 
should  advance  for  the  company  whatever  might  be  needed,  to  be 
accounted  for  under  yearly  averages  of  the  lease  during  the  contract: 
Held,  that  the  agreement  was  not  a  lease  of  the  Illinois  road,  nor  a 
contract  of  consolidation,  but  one  of  connection  between  the  two 
roads  only,  leaving  the  Illinois  corporation  the  owner  of  the  road, 
though  in  the  use  and  under  the  control  of  the  Indiana  company. 
Archer  v.  T.  H.  &  I.  R.  R.,  102  111.  493. 

1405.  Where  a  railway  corporation  of  this  state  is  consolidated 
with  a  similar  corporation  of  another  state,  in  conformity  with  the 
laws  of  this  state,  the  new  company  so  created  will  be  clothed  with  all 
the  rights,  privileges  and  powers  conferred  by  the  laws  of  this  state 
upon  the  old  corporation  of  this  state.    Cooper  v.  Corbin,  105  111.  224 

1405a.  Under  the  laws  of  this  state  permitting  the  consolidation  of 
railway  companies,  all  the  powers,  rights,  franchises  and  immunities 
to  which  the  several  companies  were  entitled,  pass  to  the  new  or  con- 
solidated company.  Such  consolidation  will  not  defeat  a  donation 
made  by  a  town  to  one  of  the  companies.  Niantic  Savings  Bank  v. 
Town  of  Douglas,  5  Bradw.  579. 

1406.  ANTECEDENT  DEBTS  AND  LIABILITIES.    The  absolute  con- 
solidation of  two  or  more  railway  companies,  without  any  provision 
being  made  for  the  old  debts  of  the  former  companies,  renders  the 
new  company  liable  for  them.    Tysen  v.  Wabash  Ry.,  11  Biss.  510: 
15  Fed.  Kep.  763. 

1407.  Persons  who  purchase  bonds  of  a  railway  company  while  a 
statute  is  in  force  authorizing  the  consolidation  of  railways,  must  be 
held  to  have  contemplated  at  the  time  of  their  purchase,  that  the 
company  issuing  them  might  consolidate  with  other  companies.    Ib. 

1408.  When  a  director  may  be  estopped  from  objecting  to  a  consol- 
idation.   See  Mowrey  v.  Indianapolis  &  Cincinnati  R.  R.,  4  Biss.  78. 

1409.  EFFECT  OF.     The  consolidation  of  two  companies  does  not 
necessarily  work  a  dissolution  of  both  and  the  creation  of  a  new  cor- 
poration.   Whether  such  will  be  the  effect,  depends  upon  the  legislative 
intent  manifested  in  the  statute  under  which  the  consolidation  takes 
place.     Central  R.  R.  &  Banking  Co.  v.  Georgia,  92  U.  S.  665. 

1410.  In  view  of  the  legislation  in  Illinois,  great  liberality  should 
be  exercised  in  regard  to  contracts  for  consolidations  between  different 
railroad  companies.     By  the  general  language  of  the  statute  relating 
to  the  union  and  consolidation  of  different  lines  of  road,  the  means 
by  which  the  result  is  to  be,  or  has  been  obtained,  have  not  been 
clearly  designated,  but  that  has  been  left  to  be  adj  usted  by  contracts 
between  the  parties.    Dimpfel  v.  O.  &  M.  Ry.,  9  Biss.  127 . 

1411.  CONSENT  OF  STOCKHOLDERS  .     To  effect  a  consolidation  of 
railway  companies  subsisting  under  special  charters  not  providing 
therefor,  the  consent  of  every  stockholder  must  be  given,  and  any  one 
dissenting  stockholder  is  entitled  to  an  injunction  against  such  con- 
solidation .     Mowrey  v.  /.  &  C.  R .  R.,  4  Biss.  78. 

1412.  As  to  consolidation  of  parallel  or  competing  lines  see  State  v. 
Vanderbilt,  37  Ohio  St.  590. 

1413.  A  consolidated  railroad  corporation,  formed  by  the  union  of 
two  corporations,  each  created  by  a  different  state,  is,  so  far  as  prop- 
erty and  business  within  each  state  are  concerned,  subject,  unless 
otherwise  provided  in  the  act  of  consolidation,  to  the  same  control 
therein,  as  before,  and  in  each  state  is  to  be  treated  as  a  domestic  cor- 
poration.   Peik  v.  Chicago  &  N.  W..R.R.,$4  U.S.  164;  Muller  v. 
DOIDS,  94  U.  S.  444. 

1414.  Without  enabling  legislation  a  railway  company  has  no 


180  RAILROADS,  WAREHOUSES, 

power  to  lease  its  road  to  a  foreign  corporation.    Archer  v.  T.  H.  &  I. 
R.  R.,  102  111.  493. 

1415.  The  general  railroad  law  of  1865  prohibited  consolidation 
with,  or  lease  to  a  foreign  corporation,  without  written  consent  of 
the  resident  stockholders.    76. 

1416.  Consolidation  of  railway  companies  under  act  of  Feb.  28, 
1854,  held,  to  confer  on  consolidated    company  same   capacity  to 
receive  municipal  subscription  as  any  one  of  the  merged  companies 
had.    Empire  v.  Darlington,  101  U.  S.  87. 

1417.  EIGHT  TO  CONSOLIDATE.    Under  the  act  of  Feb.  28,  1854, 
railroad  companies  organized  under  the  laws  of  this  state,  and  whose 
lines  of  road  are  so  intersected  as  to  constitute  a  continuous  line 
within  this  state,  might  consolidate  their  property,  stocks,  rights  and 
franchises,  and  thereby  constitute  a  new  corporation  under  a  new 
name,  possessing  the  property,  rights,  powers  and  franchises  of  the 
constituent  companies  as  given  by  their  charters;  and  thereupon  the 
constituent  companies,  as  independent  legal  entities,  would  cease  to 
exist,  and  all  their  duties  and  obligations,  whether  to  the  public,  or  to 
private  persons,  would  be  cast  upon,  and  must  be  assumed  and  dis- 
charged by  the  new  consolidated  company.    0.  &  M.  Ry.  v.  People,  — 
111.  — .    Filed  Jan.  18,  1888. 

1418.  ROADS  OF  SEVERAL  STATES.    A  corporation  de  jure,  as  well 
as  defaato,  may  be  created  with  the  consent  and  under  the  authority 
of  two  or  more  states,  by  the  voluntary  consolidation  of  corporations, 
created  and  existing  by  virtue  of  the  laws  of  such  states  respectively. 
On  the  consummation  of  such  consolidation  of  railway  companies  in 
two  or  more  states,  authorized  by  the  laws  of  the  states  creating  them, 
a  new  corporation  will  be  created,  having  in  each  state  all  the  powers, 
rights  and  franchises  that   the  constituent  companies  had  in  the 
same  state,  but  not  in  one  state  the  powers,  &c.,  of  the  constituent 
company  in  the  other  state.    The  new  corporation  will  stand  in  each 
state  as  the  original  corporation  had  previously  stood  in  the  same 
state.    Ib. 

1419.  A  consolidated  railroad  company,  formed  by  the  consolida- 
tion of  two  or  more  companies  of  different  states,  having  a  capital 
stock  which  is  a  unit,  and  only  one  set  of  stockholders,  who  have  an 
interest,  as  such,  in  all  its  property  everywhere,  and  a  single  board  of 
directors,  will  have  its  domicile  in  each  state,  and  its  stockholders, 
directors  and  officers  may,  in  the  absence  of  any  statutory  provision 
to  the  contrary,  hold  meetings  and  transact  corporate  business  in 
either  of  the  states,  though  in  relation  to  either  state,  the  consolidated 
company  will  be  a  separate  corporation,  governed  by  the  laws  of  that 
state  as  to  its  property  therein,  and  subject  to  taxation  in  conformity 
with  the  laws  of  such  state,  and  to  all  the  police  power  of  the  state  in 
respect  to  its  property  and  franchise  within  such  state.    Ib. 

1420.  EFFECT  OF.    Upon  the  creation  of  the  consolidated  corpora- 
tion the  constituent  corporations  of  the  different  states  dp  not  neces- 
sarily cease  to  exist,  although  they  lift  dormant,  and  their  property, 
rights,  powers  and  franchises  are  possessed  and  exercised  by  the  new 
consolidated  corporation.    76. 

1421.  On  consolidation  the  original  companies  become  extinct  and 
the  new  company  succeeds  to  the  ownership  of  the  two  roads  together 
with  all  their  other  property  and  rights,  and  becomes  subject  to  all 
the  liabilities  and  burdens  of  each  of  the  old  companies.    People  v.  L. 
&  N.  R.  R.,  120  111.  48. 

1421a.  POWERS  OF  NEW  COMPANY.  A  consolidated  company 
formed  under  legislative  sanction,  succeeds  to  all  the  rights  conferred 
upon  the  several  companies  thus  united,  by  their  respective  charters, 


AND  EMINENT  DOMAIN.  181 

but  not  with  greater  or  other  rights  than  were  possessed  by  the  con- 
stituent companies.    Ruggles  v.  People,  91  111.  256. 

RAILROADS— CONSOLIDATION. 

An  act  to  provide  for  the  consolidation  of  certain  railroad  corporations.    Approved 
June  14,  1883.    In  force  July  1,  1883.    L.  1883,  p.  124. 

1422.  WHAT  BAILKOADS  MAY  CONSOLIDATE,  AND  HOW.  § 
1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois,  rep- 
resented in  the  general  assembly:  Whenever  any  railroad 
which  is  situated  partly  in  this  state,  and  partly  in  one  or 
more  other  states,  and  heretofore  owned  by  a  corporation 
formed  by  consolidation  of  railroad  corporations  of  this  and 
other  states,  has  been  sold  pursuant  to  the  decree  of  any  court 
or  courts  of  competent  jurisdiction,  and  the  same  has  been 
purchased  as  an  entirety,  and  is  now,  or  hereafter  may  be, 
held  in  the  name  or  as  the  property  of  two  or  more  corpora- 
tions incorporated  respectively  under  the  laws  of  two  or  more 
of  the  states  in  which  said  railroad  is  situated,  it  shall  be 
lawful  for  the  corporation  so  created  in  this  state  to  consoli- 
date its  property,  franchises  and  capital  stock  with  the  prop- 
erty, franchises  and  capital  stock  of  the  corporation  or  corpo- 
rations of  such  other  state  or  states  in  which  the  remainder 
of  such  railroad  is  situated,  and  upon  such  terms  as  may  be 
agreed  upon  between  the  directors,  and  approved  by  the  stock- 
holders owning  not  less  than  two-thirds  in  amount  of  the 
capital  stock  of  such  corporations.  Such  approval  may  be 
given  by  the  stockholders  of  such  corporation  of  this  state  at 
any  time,  in  writing  or  by  vote,  at  any  annual  or  special  meet- 
ing, upon  sixty  days'  notice  given  by  publication  in  any  news- 
paper published  in  the  county  where  the  general  office  of 
such  company  is  situated,  and  such  meeting  is  to  be  held: 
Provided,  that  no  consolidation  shall  take  place  with  any 
railroad  owning  a  parallel  or  competing  line;  and  a  majority 
of  the  directors  of  such  consolidated  company  shall  be  citi- 
zens and  residents  of  this  state;  and  where  the  line  of  the 
road  of  the  original  company  has  been  located  in  this  state, 
and  aid  in  the  construction  thereof  voted  by  any  municipality 
by  way  of  subscription  or  donation,  and  received  by  the  com- 
pany, and  the  road  as  so  located  not  yet  completed,  then  the 
consolidated  company  shall  have  no  power  or  right  to  change 
such  line  as  so  located  so  as  to  make  the  same  substantially 
different  from  the  line  so  located  at  the  time  the  aid  was 
voted.  [B.  S.  1887,  p.  1008,  §  39;  S.  &  C.,  p.  1916,  §  24; 
Cothran,  p.  11896,  §  178.  See  ante,  1386-1421.] 

1423.  RESIDENCE  OF  DIRECTORS.  The  constitutional  provision 
that  "a  majority  of  the  directors  of  any  railroad  corporation  now  incor- 
porated, or  hereafter  to  be  incorporated  by  the  laws  of  this  state,  shall 
be  citizens  and  residents  of  this  state,"  has  no  application  to  a  railway 
corporation  formed  prior  to  the  adoption  of  the  constitution,  by  the 


182  RAILROADS,  WAREHOUSES, 

consolidation  of  a  railway  company  in  this  state  with  one  of  another 
state,  by  the  consent  of  each  of  such  states.  Such  a  corporation  exists 
under  the  laws  of  the  two  states,  and  cannot  be  said  to  be  incorporated 
solely  under  the  laws  of  this  state.  O.  &  M.  Ry.  v.  People,  —  111.  — . 
Filed  Jan.  18,  1888. 

1424:.  SAME  —  when  it  takes  effect  -  recording  articles  of 
incorporation  —  evidence  of  existence  of  new  company.  §  2. 
Such  consolidation  shall  take  effect  upon  the  filing  and  re- 
cording of  such  articles  of  consolidation  in  the  office  of  'the 
secretary  of  state  of  the  state  of  Illinois,  and  a  certified 
copy  thereof  in  the  office  of  the  recorder  of  the  various 
counties  in  which  said  railroad  is  situated.  A  certified  copy 
of  such  articles  of  consolidation,  under  seal  of  the  secretary 
of  state,  shall  be  deemed  and  taken  to  be  prima  facie  evi- 
dence of  the  existence  of  such  consolidated  corporation.  [R. 
S.  1887,  p.  1008,  §  40;  S.  &  C.,  p.  1916,  §  25;  Cothran.  p.  11896, 
§179.  See  ante,  1386.] 

1425.  .GENERAL  OFFICE  TO  BE  KEPT  IN  THIS  STATE  —  list 
of  stockholders,  their  residences,  $c. —  registry  of  stock  and 
transfers.     §  3.    Such  consolidated  corporation  shall,  at  all 
times,  keep  a  general  office  within  this  state,  at  which  shall 
be  kept  a  complete  list .  of  all  stockholders  of  such  corpora- 
tion, their  places  of  residence,  the  amount  of  stock  owned  by 
each,  and  where  the  stock  of  such  corporation  may  be  regis- 
tered and  transferred:     Provided,  that  nothing  contained  in 
this  bill  shall  be  construed  to  impair  or  affect  the  rights  of 
any  party  holding  unsettled  claims  against  any  of  the  corpo- 
rations to  be  consolidated.     [R.  S.  1887,  p.  1008,  §41;  S.  & 
0.,  p.  1917,  §  26;  Cothran,  p.  1189c,  §  180.      See  ante  67  and 
1187.] 

An  act  relating  to  lessees  in  this  state  of  railroads  in  adjoining  states.    Approved 
March  30, 1875.    In  force  July  1,  1875.     Laws  1875,  p.  96 

1426.  PURCHASE  OF  LEASED  ROADS — operated  by  compa- 
nies created  under  laws  of  this  state.     Roads  out  oj  state 
connecting  with  roads  in  state.     §  1.     Be  it  enacted  by  the 
people  of  the  state  of  Illinois,  represented  in  the  general  as- 
sembly, That  all  railroad  companies  incorporated  or  organ- 
ized, or  which  may  be  incorporated  or  organized  under  the 
laws  of  this  state,  or  of  this  and  any  adjoining  state,  which  now 
are,  or  at  any  time  hereafter  may  be,  in  possession  of  and 
operating  connecting  railroads  in-  states  adjoining  this  state 
under  lease  in  perpetuity,  or  for  a  period  of  not  less  than 
twenty  years,  shall  have  power  to  purchase  the  remaining 
interests,  property  and  franchises  of  the  lessors  of  such  rail- 
roads situate  in  such  adjoining  states,  on  such  terms  and 
conditions  as  may  be  agreed  upon  by  the  parties,  or  their  as- 
signs, to  such  lease:    Provided,  that  nothing  in  this  act  shall 
be  so  construed  as  to  authorize  any  corporation  acting  by,  or 


AND  EMINENT  DOMAIN.  183 

organizing  under  the  laws  of  any  other  state  to  purchase  or 
otherwise  become  the  owners  of  any  railroad  in  this  state. 
[E.  S.  1887,  p.  1009,  §  45;  S.  &  C.,  p.  1917,  §  27:  Oothran,  p. 
1147,  §37.] 

Act  of  March  1, 1872,  resumed. 

1427.  DIRECTORY — annual  sworn  reports  by,  to  auditor. 
§  23.  The  directors  of  every  such  corporation  shall  annually 
make  a  report,  under  oath,  to  the  auditor  of  public  accounts, 
and  to  such  other  officers  as  may  be  designated  by  law,  of  all 
its  actings  and  doings,  which,  in  part,  shall  include  such 
matters  relating  to  such  corporations  as  may  be  now  or  here- 
after prescribed  by  law.  [E.  S.  1887,  p.  1005,  §  24;  S.  &  0., 
p.  1917,  §  28;  Cothran,  p.  1144,  §  24.] 

1228.  LEGISLATIVE  CONTROL  OVER— prevention  of  unjust 
discrimination  and  extortions  in  charges.  §  24.  The  gen- 
eral assembly  shall  have  power  to  enact,  from  time  to  time, 
laws  to  prevent  and  correct  abuses,  and  to  prevent  unjust 
discriminations  and  extortions  in  the  rates  of  freight  and 
passenger  tariff,  and  to  establish  reasonable  maximum  rates 
of  charges  for  the  transportation  of  persons  or  property  on 
any  railway  that  may  be  constructed  under  the  provisions  of 
this  act,  and  to  enforce  such  laws  by  adequate  penalties  to 
the  extent,  if  necessary  for  that  purpose,  of  forfeiture  of 
the  property  and  franchises  of  any  such  corporation.  [  Const. 
art.  11,  §§12  and  15.  See  ante,  68-86.  E.  S.  1887,  p.  1005, 
§  25;  S  &  C.,  p.  1917,  §  29;  Cothran,  p.  1144,  §  25.] 

LEGISLATIVE  CONTROL   IN   GENERAL. 

(a)  POLICE   REGULATIONS. 

1429.  The  legislature  has  the  power  by  the  enactment  of  general 
laws,  from  time  to  time,  as  the  public  exigency  may  require,  to  regu- 
late corporations  in  the  exercise  of  their  franchises,  so  as  to  provide 
for  the  public  safety.  Galena  &  Ch.  Union  R.  R.  v.  Loomis,  13  111.  548. 

1430.  In  the  exercise  of  privileges  a  corporation  is  as  much  subject 
to  the  general  police  laws  of  the  state,  as  is  any  individual  pursuing 
his  lawful  business.    Ib. 

1431.  Corporations    are   artificial  persons,  created  with   limited 
powers  and  capacities,  and  subject  to  the  general  laws  and  legislation 
of  the  state,  the  same  as  natural  persons  are.    They  cannot  be  de- 
prived of  rights  secured  to  them  by  contract,  without  just  comp^nsa- 
tion;  but  like  natural  persons,  in  the  exercise  of  their  rights  of  ogani- 
zation  and  existence,  they  are  subject  to  the  control  of  the  legislature 
by  general  laws.    Bank  of  the  Republic  v.  Hamilton  County.  21 
111.  53. 

1432.  The  general  rights  and  powers  of  a  private  corporation  and, 
which  are  not  intended  to  be  secured  to  it  as  its  property,  are  subject 
to  legislative  control  in  the  same  manner  as  the  general  rights  of  in- 
dividuals.    Ib. 

1433.  Corporations  are  subordinate  to  and  under  the  control  of 
the  government  to  the  same  extent  as  individuals.    They  are  subject 


184  RAILROADS,  WAREHOUSES, 

to  the  general  police  regulations  of  the  state.    0.  &  M .  R .  R .  v.  McClel- 
land, 25  111.  140. 

1434.  The  act  to  regulate  the  duties  and  liabilities  of  railroad  com- 
panies passed  in  1855,  applies  to  companies  previously  incorporated. 
Galena  &  Ch.  Union  R.  R.  v.  Crawford,  25  111.  529. 

1435.  A  railroad  company  takes  its  charter  upon  the  implied  con- 
dition that  its  franchises  shall  be  exercised  subject  to  the  power  of  the 
state  to  impose  reasonable  regulations  upon  it  as  the  comfort,  safety 
or  welfare  of  society  may  require.     C.  &  A.  R.  R.  v.  People,  use,  105 
111.  657.    See  /.  C.  R.  R.  v.  People,  95  111.  313. 

1436.  Corporations  created  within  the  state  are  amenable  to  the 
police  power  of  the  state  to  the  same  extent  as  are  natural  persons,  but 
to  no  greater  extent.    The  legislature  may  require  of  these  bodies  the 
performance  of  any  and  all  acts,  which  they  are  capable  of  perform- 
ing, that  it  may  require  of  natural  persons.    Ruggles  v .  People,  91 
111.  256. 

1437.  The  police  power  of  the  state  when  exercised  by  the  legis- 
lature in  the  passage  of  laws  for  the  protection  of  life,  liberty  and 
property,  or  laws  for   the  general  welfare,  has  no  limitations  or  re- 
strictions, except  such  as  are  found  in  the  constitution.    Hawthorn 
v.  People,  109  111.  302. 

1438.  A  state  has  all  power  necessary  for  the  protection  of  the 
property,  health  and  comfort  of  the  public,  and  it  may  delegate  this 
power  to  local  municipalities  in  such  measure  as  maybe  deemed  desir- 
able for  the  best  interests  of  the  public  and  the  state  may  resume  it 
again  when  deemed  expedient.    Harmon  v.  Chicago,  110  111.  400. 

1439.  PUBLIC  BUKDENS.    The  police  power  of  a  state,  comprehen- 
sive as  it  is,  has  its  limitations.    A  purely  public  burden  cannot  be  laid 
upon  a  private  individual,  except  as  authorized  in  cases  to  exercise 
the  right  of  eminent  domain,  or  by  proceedings  to  enforce  special  as- 
sessments or  special  taxation.    Chicago  v.  O'Brien,  111  111.  532. 

1440.  By  the  grant  of  corporate  franchises  to  railway  companies 
to  procure  the  right  of  way  and  operate  their  trains  by  the  power  of 
steam,  the  state  does  not  deprive  itself  of  its  inherent  power  to  enact 
all  police  laws  necessary  and  proper  to  protect  the  life  and  property  of 
its  citizens.    T.,  P.  &  W.  Ry.  v.  Deacon,  63  111.  91. 

1441.  Railway  corporations  are  subject  to  police  regulations  the 
same  as  private  citizens.    The  legislature,  where  the  public  exigencies 
require  it,  has  power  to  regulate  corporations  in  the  exercise  of  their 
franchises,  so  far  as  to  provide  for  the  public  safety.    The  exercise  of 
this  right  in  no  manner  interferes  with  or  impairs  the  powers  confer- 
red by  their  acts  of  incorporation.     T.,  W.  &  W.  Ry.  v.  Jacksonville, 
67  111.  37. 

1442.  Under  this  power  it  has  been  held  that  the  legislature  may 
require  railroad  corporations,  notwithstanding  no  such  right  has  been 
reserved  in  their  charters,  to  fence  their  tracks,  to  p\it   in    cattle 
guards,  to  place  upon  their  engines  a  bell,  and  to  do  many  other 
things  for  the  protection  of  life  and  property.    Ib. 

1443.  This  police  power  is  inherent  in  the  state  and  it  can  not  part 
irrevocably  with  its  control  over  that  which  is  for  the  health,  safety 
and  welfare  of  society.     Ib. 

1444.  What  are  reasonable  regulations,  and  what  are  subjects  of 
police  powers,  must,  necessarily,  be  judicial  questions.    The  law  mak- 
ing power  is  the  sole  judge  when  the  necessity  exists,  and  when,  if 
at  all,  it  will  exercise  the  right  to  enact  such  laws.    Ib. 

1445.  Like  other  powers  of  government,  there  are  constitutional 
limitations  to  the  exercise  of  the  police  power.    The  legislature  can- 


AND  EMINENT  DOMAIN.  '185 

not  under  the  pretense  of  exercising  this  power,  enact  laws  not  neces- 
sary to  the  preservation  of  the  health  and  safety  of  the  community, 
that  will  be  oppressive  and  burdensome  upon  the  citizens.  If  it 
should  prohibit  that  which  is  harmless  in  itself,  or  command  that  to 
be  done,  which  does  not  tend  to  promote  the  health,  safety  or  welfare 
of  society,  it  would  be  an  unauthorized  exercise  of  power,  and  it 
would  be  the  duty  of  the  court  to  declare  such  legislation  void.  Ib. 

1446.  In  matters  pertaining  to  the  internal  peace  and  well  being 
of  the  state,  its  police  powers  are  plenary  and  inalienable.    It  is  a 
power  coextensive  with  self  protection.    Everything  necessary  for  the 
protection,  safety  and  best  interests  of  the  people  of  the  state  may  be 
done  under  this  power.    Persons  and  property  may  be  subjected  to  all 
reasonable  restraints  and  burdens  for  the  common  good.    Dunne  v. 
People,  94  111.  120. 

1447.  Where  mere  property  interests  are  involved,  this  power  like 
other  powers  of  government,  is  subject  to  constitutional  limitations; 
but  where  the  internal  peace  and  health  of  the  people  are  concerned, 
the  only  limitations  imposed  are,  that  "  such  regulations  must  have 
reference  to  the  comfort,  safety  and  welfare  of  society."    What  will 
endanger  the  public  security  must,  as  a  general  rule,  be  left  to  the 
wisdom  of  the  legislative  department.    Ib. 

1448.  With  certain  constitutional  limitations,  the  rights  of  all  per- 
sons, whether  natural  or  artificial,  are  subject  to  such  legislative  con- 
trol as  the  legislature  may  deem  necessary  for  the  general  welfare, 
and  in  this  respect  there  is  no  difference  between  the  rights  of  natural 
and  artificial  persons.     Ward  v.  Farwell,  97  111.  593. 

1449.  Laws  imposing  police  regulations  are  usually  construed  as 
applying  to  existing  corporations  as  well  as  those  afterwards  created. 
Galena  &  Ch.  Union  R.  R.  v.  Loomis,  13  111.548;  Western  Union  R.  R. 
v.  Fulton,  64  111.  271;  Indianapolis  &  St.  Louis  R.  R.  v.  Blackman, 
63  111.  117. 

1450.  The  state  in  the  exercise  of  this  power  may  require  reports. 
See  ante,  §  23,  Kailroad  Law;  State  v.  Southern  Pacific  R.  R.,  24  Tex.  80. 

1451.  The  numbering  of  cars.    F.  &  P.  Pass.  R .  R.  v.  Philadelphia, 
58  Pa.  St.  119. 

1452.  The  fixing  and  posting  of  rates.    Ch.  &  N.  W.  R.  R.  v.  Ful- 
ler, 17  Wall.  560. 

1453.  A  slow  rate  of  movement  at  certain  places.    T.,  P.  &  W.  Ry. 
v.  Deacon,  63  111.  91 ;  C.,  R.  I.  &  P.  R.  R.  v.  Reidy,  66  111.  43 ;  C.,  B.&Q 
R.  R.  v.  Haggerty,  67  111.  113;  L.,  8.  &  M.  S.  R.  R.  v.  Berlink,  2  Bradw 
427;  C.  &  N.  W.  Ry.  v.  Schumilowsky,  8  Bradw.  613;  Garland  v.  C.  & 
N.  W.  Ry.,  8  Id.  571;  C.  &  A.  R.  R.  v.  Robinson,  9  Bradw.  89;  P.,  D.  & 
E.  Ry.  v.  Miller,  11  Bradw.  375;   C.,  B.  &  Q.  R.  R.  v.  Dougherty,  12 
Bradw.  181. 

1454.  The  disuse  of  steam  in  cities.    R.  R.  v.  Richmond,  96  U.  S. 
521;  26Gratt.  83. 

1455.  The  stationing  of  a  flagman  at  highway  crossing.    T.,  W.  & 
W.  Ry.  v.  Jacksonville,  67  111.  37;   L.,  S.  &  M.  S.  R.  R.  v.  Kaste,  11 
Bradw.  536,  114  111.  79;  Ch.,  R.  I.  &  P.  Ry.  v.  Eininger,  114  111.  79. 

1450.  The  stopping  of  trains  at  county  seats  or  certain  stations. 
Davidson  v.  State,  4  Tex.  App.  545;  R.  R.  v.  Le&eirre,  51  Tex.  189; 
C.  &  A.  R.  R.  v.  People,  105  111.  657. 

1457.  To  keep  ticket  office  open.    St.  L.,A.&  T.  H.  R.  R.  v.  South, 
43  111,  176. 

1458.  Police  regulation  must  not  interfere  with  foreign  or  inter- 
state commerce.    If  it  does  it  is  void.    R.  R.  v.  Husen,  5  Otto,  465; 
Salzenstein  v.  Mavis,  91  111.  391. 


186  EAILROADS,  WAREHOUSES, 

1459.  ELECTION  OF  DIRECTORS — minority  representation 
— cumulative   voting — proxy.      §   25.      In   all   elections   for 
directors  or  managers  of  such  railway  corporations  every 
stockholder  shall  have  the  right  to  vote,  in  person  or  by  proxy, 
for  the  number  of  shares  of  stock  owned  by  him,  for  as  many 
persons  as  there  are  directors  or  managers  to  be  elected,  or 
to  cumulate  said  shares,  and  give  one  candidate  as   many 
votes  as  the  number  of  directors,  multiplied  by  the  number 
of  his  shares  of  stock,  shall  equal ;  or  to  distribute  them,  on 
the  same  principle,  among  as  many  candidates   as  he  shall 
think  fit;  and  such  directors  or  managers  shall  not  be  elected 
in  any  other   manner.     [E.  S.  1887,  p.  1005,  §  26;  S.  &  C.,  p. 

1917,  §  30;  Cothran,  p.  1144,  §  26.     See  ante,  59.] 

1460.  RATES  or  CHARGES — to  induce  aid  by  donation 
or  subscription,  binding   on  corporation  and  its  successor. 
§  25^.     In  all  cases  when  any  corporation  organized  under 
this  act  to  induce  aid  in  its  construction,  either  by  donation 
or  subscription  to  its  capital  stock,  shall  desire  to  fix  the  rates 
for  any  period  of  time  for  the  transportation  of  passengers  or 
freight,  such  corporation  may  adopt  a  resolution  fixing  such 
rates,  and  the  time  for  which  the  same  is  to  be  fixed,  and 
have  the  same  recorded  in  the  office  of  the  recorder  of  deeds 
in  the  several  counties  through  which  said  road  is  proposed 
to  be  run;  and  during  the  time  for  which  they  are  fixed,  said 
rates  shall  in  no  case  be  amended  by  said  corporation  or  its 
successors:    Provided,  that  said   rates  shall  not  exceed  the 
rates  allowed  by  law.     [E.  S.  1887,  p  1005,  §  27;  S.  &  C.,  p. 

1918,  §  31;  Cothran,  p.  1144,  §  27.] 

1461.  As  to  the  binding  effect  of  contract  respecting  rates  of  char- 
ges for  freight,  upon  successor,  see  C.  &  A.  R.  R.  v.  Ch.,  V.  &  W.  Coal 
Co.,  79  111.  121;  People  v.  L.  &  N.  R.  R.,  120  111.  48. 

1 462.  LIMITATION — for  commencement  of  and  completion 
of  road.     §  26.     If  any  railway  corporation  organized  under 
this  act,  shall  not,  within  two  years  after  its  articles  of  asso- 
ciation shall  be  filed  and  recorded  as  provided  in  the  second 
section  of  this  act,  begin  the  construction  of  its  road,  and 
expend  thereon  twenty-five  per  cent,  on  the  amount  of  its 
capital,  within  five  years  after  the  date  of  its  organization,  or 
shall  not  finish  the  road   and  put  it  in  operation  within  ten 
years  from  the  time  of  filing  its  articles  of  association,  as 
aforesaid,  its  corporate   existence   and   powers  shall   cease. 
[E.  S.  1887,  p.  1006,  §  28;  S.  &  C.,  p.  1918,  §  32;  Cothran,  p. 
1144,  §28.] 

1463.  EEPEAL   OF   PRIOR  ACTS  —  saving    of  rights  ac- 
quired under  acts  repealed — adoption  of  this  act  —  validates 
prior  organization  —  no  release  from  prior  obligations  and 
liabilities — action  against  corporation.  §  27.  That  an  act  enti- 


AND  EMINENT  DOMAIN.  187 

tied  "An  act  to  amend  '  an  act  to  provide  for  a  general  system 
of  railroad  incorporations,'  approved  November  5,  1849,"  ap- 
proved February  13,  1857,  and  also  all  of  an  act  entitled  "An 
act  to  provide  for  a  general  system  of  railroad  incorporations," 
approved  November  5,  1849,  except  the  sections  of  the  last 
named  act  numbered  34,  35,  36,  37,  38,  39,  40,  41,  42  and  45, 
and  all  laws  in  conflict  with  the  provisions  of  this  act,  be  and 
the  same  are  hereby  repealed:   Provided,   however,  that  all 
general  laws  of  this  state  in  relation  to  railroad  corporations, 
and  the  powers  and  duties  thereof,  so  far  as  the  same  are  not 
inconsistent  with  the  provisions  of  this  act,  shall  remain  in 
force  and  be  applicable  to  railroad  incorporations  organized 
under  this  act.     The  repeal  of  the  acts  and  parts  of  acts 
mentioned  in  this  section  shall  not  be  construed  so  as  to  ef- 
fect any  rights  acquired  thereunder;  but   all    corporations 
formed  or  attempted  to  be-  formed  under  such  acts  or  parts 
of  acts,  notwithstanding  any  defects  or  omissions  in  their  ar- 
ticles of  association,  may,  if  they  Will  adopt  or  have  adopted 
this  act,  be  entitled  to  proceed  thereunder,  and  have  all  the 
benefits  of    this  act;    and  all  such  corporations  that  have 
adopted  or  that  will  adopt  this  act,  are  hereby  declared  legal 
and  valid  corporations,  within   the   provisions  of    this  act, 
from  the  date  of  the  filing  of  their1  respective  articles  of  as- 
sociation.    And  the  fixing  of  the  termini  by  any  such  corpo- 
ration shall  have  the  same  effect  as  if  fixed  by  the  general 
assembly:   Provided,  that  all  corporations  to  which  this  act 
shall  apply  shall  be  held  liable  for,  and  shall  carry  out  and 
fulfill  all  contracts  made  by  them,  or  for,  or  on  their  behalf, 
or  of  which  they  have  received  the  benefit,  whether  such  cor- 
poration, at  the  time  of  the  making  of  such  contract  or  con- 
tracts, was  organized,  or  had  attempted  to  organize,  under 
the  general  laws  of  the  state  of  Illinois,  or  not;  whether 
said  contract  was  for  right  of  way,  work  and  labor  done,  or 
materials  furnished,  or  for  the  running  of  trains  or  carrying 
passengers  or  freight  upon  such  road,  or  upon  any  other  road 
in  connection  therewith.     And  if   such  corporation  has  or 
does  take  possession  of  or  use  such  right  of  way,  labor  or 
material  so  furnished  by  other  persons  or  corporations,  it 
shall  be  evidence  of  its  acceptance  of  such  contract  so  en- 
tered into  by  such  person  or  corporation  with  said  persons 
or  corporations  for  its  benefit.     And  upon  said  corporation 
failing  to  pay  said  sum  as  it  ought  equitably  to  pay  for  such 
right  of  way,  labor  or  materials,  or  fail  to  carry  out  such 
contracts  as  aforesaid,  so  made  with  persons  or  corporations, 
it  shall  be  held  liable  in  an  action  at  law  or  in  chancery  for 
the  recovery  of  the  value  of  said  right  of  way,  labor  or  ma- 
terials, and  for  damages  for  non-fulfillment  of  such  contract, 
in  any  court  of  competent  jurisdiction  in  any  county  through 


188  EAILEOADS,  WAREHOUSES, 

which  the  road  of  such  corporation  may  be  located:  And, 
provided,  further,  that  this  act  shall  not  in  any  manner  legal- 
ize the  subscription  of  any  township,  county  or  city  to  the 
capital  stock  of  any  railroad  company,  nor  authorize  the 
issuing  of  any  bonds  by  any  township,  city  or  county  in  pay- 
ment of  any  subscription  or  donation.  [R.  S.  1887,  p.  1006, 
§  29;  S.&  C.,  p.  1918,  §  33;  Cothran,  p.  1144,  §  29.  J 

1464.  This  section  applies  only  to  such  corporations  as  adopt  the 
act,  and  has  no  application  to  contracts  to  carry  coal  at  reduced  rates. 
C.  &  A.  R.  R.  v.  Chi.,  Verm  &  Wilm.  Coal  Co.,  79  111.  121,  127. 

1465.  CURATIVE  LEGISLATION  —  validation  of  defective  organi- 
zation.   Any  defect  in  the  organization  of  a  railway  company,  under 
the  general  railroad  law  of  1849,  may  be  cured  by  subsequent  legislation. 
Illinois  Grand  Trunk  R.R.v.Cook,  29  111.  237;  Goodrich   v.  Rey- 
nolds, Wilder  &  Co.,  31  111.  490;  Mitchell  v.  Deeds,  49  111.  416;  HaMier 
v.  T.,  W.  &  W.  R.  R.,  62  111.  477. 

1466.  Legislation  held  to  create  a  new  and  distinct  corporation 
and  not  a  reorganization  of  the  old  company.   Morgan  Co.  v.  Thomas. 
76  111.  120. 

An  act  to  enable  railway  companies  to  borrow  money  and  to  mortgage  their  property, 
and  franchises  therefor.  Approved  May  7, 1873.  In  force  July  1,  1873.  Laws  of  1873.  'p. 
141. 

14:67.  BORROWING  MONEY  BY  COMPANIES  FORMED  PRIOR  TO 
MARCH  1,  1872.  §  1.  Be  it  enacted  by  the  people  of  the  state 
of  Illinois,  represented  in  the  general  assembly,  That  every 
railroad  company  organized  under  any  law  or  laws  of  this 
state,  in  force  before  the  first  day  of  March,  A.  D  1872,  is 
hereby  empowered  from  time  to  time  to  borrow  such  sums  of 
money  as  may  be  necessary  for  completing,  furnishing,  im- 
proving or  operating  any  such  railroad,  and  to  issue  and  dis- 
pose of  its  bonds  for  any  amount*  so  borrowed,  and  to  mort- 
gage its  corporate  property  and  franchises  to  secure  the  pay- 
ment of  any  debt  contracted  by  such  corporation  for  the  pur- 
poses aforesaid;  but  the  concurrence  of  the  holders  of  two- 
thirds  in  amount  of  the  stock  of  such  corporation — to  be  ex- 
pressed in  the  manner  hereinafter  provided — shall  be  neces- 
sary to  the  validity  of  any  such  mortgage ;  and  the  order  or  reso- 
lution for  such  mortgage  shall  be  recorded  as  provided  in  this 
act;  and  the  directors  of  such  corporation  shall  be  empowered, 
in  pursuance  of  any  such  order  or  resolution,  to  confer  on 
any  holder  of  any  bond,  for  money  so  borrowed  as  aforesaid, 
the  right  to  convert  the  principal  due  or  owing  thereon  into 
stock  of  such  corporation  at  any  time  not  exceeding  ten  years 
after  the  date  of  such  bond,  under  such  regulation  as  may 
be  provided  in  the  by-laws  of  such  corporation.  [R.  S.  1887, 
p.  1007,  §  35;  8.  &  C.,  p.  1919,  §  34;  Cothran,  p.  1145;  §  30, 
See  ante,  1338,  1368.] 

1468.  BORROWING  MONEY,  MORTGAGE — concurrence  of 
stockholders,  how  shown.  §  2.  The  concurrence  of  the 
holders  of  at  least  two-thirds  in  amount  of  the  capital  stock 


AND  EMINENT  DOMAIN.  189 

of  such  corporation  in  the  creation  of  any  such  debt  and  the 
execution  of  any  such  mortgages,  shall  be  made  manifest  by 
the  votes  cast  by  such  stockholders  in  person  or  by  proxy,  on 
the  passage  of  appropriate  orders  or  resolutions  at  a  meeting 
of  the  stockholders  of  such  corporation,  called  by  the  direc- 
tors thereof  for  such  purpose.  [K.  S.  1887,  p.  1007,  §  36;  S. 
&  C.,  p.  1919,  §  35;  Cothran,  p,  1146,  §  31.  See  ante,  1338, 
et  seq.  ] 

1469.  NOTICE    OF    MEETING — contents,   and  how  given. 
§  3.     The  directors  of  such  corporation  shall  give  notice  of 
such  meeting  by  causing  written  or  printed  notices  thereof 
to  be  either  personally  served  upon  or  duly  mailed  (postage 
prepaid)   to  such   stockholders  whose   names   and   address 
shall  be  known  to  said  directors,  such  notice  to  be  so  mailed 
at  least  sixty  days  before   the  time  fixed  for  such  meeting. 
The  said  notices  shall  state  the  time  and  place  of  such  meet- 
ing and  the  purpose  thereof,  as  well  as  the  amount  of  the 
proposed  indebtedness.     The  said  directors  shall  also  cause 
like  notices  to  be  inserted  in  some  newspaper  published  in 
each  county  through  which  said  road  shall  run,  ( if  any  news- 
paper shall  be  published  therein)  at  least  sixty  days  prior  to 
the  day  appointed  for  such  meeting.     [E.  S.  1887,  p.  1008,  § 
37;  S.  &  0.,  p.  1919,  §  36;  Cothran,  p.  1146,  §  32.] 

1470.  BESOLUTION  TO  MORTGAGE — record  of,  where.   §  4. 
When  such  meeting  shall  be  held,  the  resolution  or  order 
authorizing  the  creation  of  such  indebtedness,  and  the  exe- 
cution of  the  mortgage  to  secure  the  same,  together  with  the 
result  of  the  vote  thereon,  shall  be  recorded  in  the  office  of 
the  recorder   of  deeds  of   each  county  through  which   said 
road  shall  run,  and  shall  also  be  recorded  in  the  office  of  the 
secretary  of  state.     [II.   S.   1887,  p.  1008,   §  38;  S.  &  C.,  p. 
1920,  §  37;  Cothran,  p.  1146,  §  33.] 

STOCK  TRANSFER  OFFICES. 

An  act  to  require  railroad  corporations  to  have  and  maintain  a  public  office,  or  place 
in  the  state  of  Illinois  where  transfers  of  stock  may  be  made,  and  to  enforce  the  provis- 
ions of  section  nine  (9),  article  eleven  (11),  of  the  constitution  of  Illinois.  Approved  June 
18,1883.  In  force  July  1,  1883.  [L.  1883,  p.  128.  R.  S.  1887,  p.  1006;  S.  &  C.,  p.  1930; 
Cothran,  p.  1189c.  See  ante,  61.] 

1471.  SHALL  HAVE  PUBLIC  OFFICE — BOOK  WITH  TRANSFERS 
OF  STOCK  REGISTERED.     §  1.     Be  it  enacted  by  the  people  of 
the  state  of  Illinois,  represented  in  the  general  assembly: 
Each  and  every  railroad  corporation,  organized  or  doing  busi- 
ness in  this  state,  under  the  laws  or  authority  thereof,  shall 
have  and  maintain  a  public  office,  or  place  in  this  state  for 
the  transaction  of  its  business,  where  transfers  of  shares  of 
its  stock  shall  be  made  by  such  railroad  corporation,  upon 
the  request  of  the   owner  of   shares  thereof,  presenting  the 
certificate  thereof.     Every   such  railroad   corporation   shall 


190  EAILROADS,  WAREHOUSES, 

keep  a  book  in  which  the  transfers  of  shares  of  its  stock  shall 
be  registered,  and  another  book  containing  the  names  of  its 
stockholders,  which  book  shall  be  open  to  the  examination  of 
the  stockholders. 

1472.  FINES  FOR  FAILURE  TO  COMPLY.     §  2.     Any  rail- 
road corporation,  organized  or  doing  business  in  this  state 
under  the  laws  or  authority  thereof,  failing  to  comply  with 
the  provisions  of  section  one  (1),  of  this  act,  within  ninety 
(90)  days  after  the  taking  effect  of  this  act,  shall  upon  con- 
viction thereof,  be  fined  in  any  sum  not  less  than  one  thous- 
and  dollars  ($1,000),   nor  more  than  two  thousand  dollars 
($2,000).     In  case  any  such  railroad  corporation  shall  fail  to 
comply  with  the  provisions  of  said  section  one  ( 1 )  within  six 
months  after  the  taking  effect  of  this  act  it  shall,  upon  con- 
viction thereof,  be  fined  in  any  sum,  not  less  than  two  thous- 
and dollars  ($2,000),  nor  more  than  four  thousand  dollars 
( $4,000 ) ;  and  for  every  year  after  the  taking  effect  of  this 
act,  any  such  railroad  corporation  shall  fail  to  comply  with 
the  provisions  of  said  section  one  ( 1 ),  it  shall,  upon  convic- 
tion, be  fined  not  less  than  four  thousand  dollars  ($4,000): 
Provided,  that  in  all  cases  under  this  act  either  party  shall 
have  the  right  of  trial  by  jury. 

1473.  FINES  RECOVERED  IN  ACTION  OF  DEBT.    §  3.    The 
fines  hereinbefore  provided  for,  may  be  recovered  in  an  action 
of  debt  in  the  name  of  the  people  of  the  state  of  Illinois. 

1474.  EAILROAD  AND  WAREHOUSE  COMMISSIONERS  —  duty 
of,  to  enforce  act.     §  4.     It  shall  be  the  duty  of  the  railroad 
and  warehouse  commissioners  to  personally  investigate  and 
ascertain  whether  the  provisions  of  this  act  are  violated  by 
any  railroad  corporation  in  this  state ;  and  whenever  the  facts 
in  any  manner  ascertained  by  said  commissioners  shall,  in 
their  judgment,  warrant  such  prosecution,  it  shall  be   the 
duty  of  said  commissioners  to  immediately  cause  suits  to  be 
commenced  and  prosecuted  against  any  railroad  corporation 
which  may  violate  the  provisions  of  this  act.     Said  suits  and 
prosecutions  may  be  instituted  in  any  county  in  this  state, 
through  or  into  which  the  line  of  the  railroad  corporation 
sued  for  violating  this  act  may  extend.     And  such  railroad 
and  warehouse  commissioners  are  hereby  authorized  to  em- 
ploy counsel  to  assist  the  attorney  general  in  conducting 
such  suit  on  behalf  of  the  state.     No  such  suits  commenced 
by  said  commissioners  shall  be  dismissed,  except  said  rail- 
road and  warehouse  commissioners  and  the  attorney  general 
shall  consent  thereto. 

1475.  FINES  TO  BE  USED  FOR  COUNTY  PURPOSES.    §5.    All 
fines  recovered  under  the  provisions  of  this  act  shall  be  paid 
into  the  county  treasury  of  the  county  in.  which  the  suit  is 


AND  EMINENT  DOMAIN.  191 

tried,  by  the  person  collecting  the  same  in  the  manner  now 
provided  by  law,  to  be  used  for  county  purposes. 

An  act  to  enable  railroad  companies  to  enter  into  operative  contracts  and^to  borrow 
money.     Approved  Feb.  12,  1855.    Private  laws  1855,  p.  304. 

1476.  DOMESTIC  COKPOBATIONS — power  to  contract  with 
each  other  and  foreign  corporations,  and  to  purchase  real  and 
personal  property.     §  1.  Be  it  enacted  by  the  people  of  the 
state  of  Illinois,  represented  in  the  general  assembly,  That 
all  railroad  companies  incorporated  or  organized  under,  or 
which  may  be  incorporated  or  organized  under  the  authority 
of  the  laws  of  this  state,  shall  have  power  to  make  such  con- 
tracts and  arrangements  with  each  other,   and  with  railroad 
corporations  of  other  states,   for  leasing   or  running  their 
roads,  or  any  part  thereof;  and  also  to  contract  for  and  hold 
in  fee  simple  or  otherwise,  lands  or  buildings  in  this  or  other 
states  for  depot  purposes ;  and  also  to  purchase  and  hold  such 
personal  property  as  shall  be  necessary  and  convenient  for 
carrying  into  effect  the  object  of  this  act.    [R.  S.  1887,  p.  1009, 
§  42;  S.  &  C.,  p.  1921,  §  43;  Cothran,  p.  1146,  §  34  ] 

1477.  This  act  held  applicable  to  horse    railways.     Chicago  v. 
Evans,  24  111.  52. 

1478.  One  company  using  the  road  of  another,  must  conform  to 
the  charter  of  the  road,  used,  or  leased.    Ib. 

1479.  A  railway  company  selling  tickets  over  its  own  and  other 
roads,  is  liable  for  the  safety  of  passengers  and  baggage  to  the  place  of 
destination.    J.  C.  R.  R.  v.  Copeland,  24  111.  332. 

1480.  It  would  seem  that  a  liability  for  not  delivering  goods  over 
connecting  roads,  exists.    Ib. 

1481.  Liability  of  company  for  acts  of  its  lessees  or  contractors. 
West  v.  St.  L.,  V:&T.  H.  R.  R.,  63  111.  545. 

1482.  An  unauthorized  lease  of  the  road  will  not  release  a  sub- 
scriber from  his  subscription.     0.  O.  &  F.  R.  V.  R.  R.  v.  Black,  79  111. 
262. 

1483.  Relief  of  stockholders  against  an  unauthorized  lease  is  in 
equity  and  not  at  law.    Ib. 

1484.  Under  this  act  railway  companies  have  power  to  make  con- 
tracts and  arragements  with  each  other  for  leasing  and  running  their 
respective  roads,  or  any  part  thereof.    III.  Midland  Ry.  v.  People  ex  rel, 
84  111.  426. 

1484a.  PARTNERSHIP— joint  contracts  of.  As  a  general  rule  cor- 
porations are  not  capable  of  forming  partnerships,  but  they  may  make 
joint  contracts  by  which  two  or  more  may  become  liable.  Marine 
Sank\.  Ogden,  29  111.248. 

14846.  POWER,  TO  MAKE  CONTRACTS.  While  it  is  trite  that  railway 
corporations  can  only  make  such  contracts  as  the  legislature  may 
authorize,  yet  when  made  within  their  powers,  their  contracts,  in  legal 
effect,  are  the  same  as  like  contracts  made  by  natural  persons  under 
similar  circumstances.  People  v.  L.&N.R.  R.,  120  111.  48. 

1484c.  CONTRACT  TO  STOP  TRAINS  AT  A  PARTICULAR  POINT. 
Where  a  railway  company  accepts  a  municipal  subscription  or  dona- 
tion under  conditions  imposed  by  a  vote  of  the  people,  and  by  its 
contract  with  a  county  board,  to  maintain  a  depot  for  passengers  and 


192  BAILROADS,  WAREHOUSES, 

freights  within  the  limits  of  a  town,  and  to  stop  all  its  passenger  trains 
at  such  depot,  and  afterwards  consolidates  with  another  company 
which  owes  no  such  duty,  the  new  company,  thereby  formed,  will 
become  bound  by  such  contract.  But  a  purchaser  of  the  property  of 
the  original  railway  company  at  judicial  sale,  will  take  the  property 
without  assuming  any  liability  to  perform  its  personal  contracts. 
People  v.  L.  &  N.  R.  R.,  120  111.  48. 

1485.  CONNECTIONS.  §  2.  All  railroad  companies  incor- 
porated or  organized,  or  which  may  be  incorporated  or  organ- 
ized as  aforesaid,  shall  have  the  right  of  connecting  with  each 
other,  and  with  the  railroads  of  other  states,  on  such  terms 
as  shall  be  mutually  agreed  upon  by  the  companies  interested 
in  such  connection.  [E.  S.  1887,  p.  1009,  §  43;  S.  &  C.,  p. 
1921,  §  44;  Cothran,  p.  1147,  §  35. 

1486.    §  3  of  this  act,  giving  power  to  borrow  money,  repealed  by 
statutes,  chap.  131,  §  5. 

An  act  to  facilitate  travel  and  transportation.  Approved  and  in  force  Feb.  25, 1867. 
Laws  of  1867,  p.  174. 

1487.  RAILWAY  BRIDGES — duty  to  make  and  allow  con- 
nections with  by  railway  companies.   §  1.  Be  it  enacted  by  the 
people  of  the  state  of  Illinois,  represented  in  the  general 
assembly:  Railroads  terminating,  or  to  terminate  at  any  point 
on  any  line  of  continuous  railroad  thoroughfare  where  there 
now  is  or  shall  be  a  railroad  bridge  for  crossing  of  passen- 
gers and  freight  in  cars  over  the  same  as  part  of  such  thor- 
oughfare, shall  make  convenient  connections  of  such  rail- 
roads, by  rail,  with  the  rail  of  such  bridge;  and  such  bridge 
shall  permit  and  cause  such  connections  of  the  rail  of  the 
same  with  the  rail  of  such  railroads,  so  that  by  reason  of 
such  railroads  and  bridge,  there  shall  be  uninterrupted  com- 
munication over  such  railroads  and  bridge  as  public  thorough- 
fares.    But  by  such  connections  no  corporate  rights  shall 
be  impaired.     [R.  S.  1887,  p.  1009,  §  44;  S.  &  C.,  p.  1921,  § 
45;  Cothran,  p.  1147,  §  36. 

An  act  to  facilitate  the  carriage  and  transfer  of  passengers  and  property  by  railroad 
companies.  Approved  May  24,  1877.  In  force  July  1,  1877.  L.  1877,  p.  167. 

1488.  POWER  TO  OWN  AND  USE  WATER  CRAFT.    §  1.     Be 
it  enacted  by  the  people  of  the  state  of  Illinois,  represented 
in  the  general  assembly,  That  all  railroad  companies  incor- 
porated under  the  laws  of  this  state,  having  a  terminus  upon 
any  navigable  river  bordering  on  this  state,  shall  have  power 
to  own  for  their  own  use  any  water  craft  necessary  in  carry- 
ing across  such  river  any  cars,  property  or  passengers  trans- 
ported over   their   lines,    or   transported   over  any  railroad 
terminating  on  the  opposite  side  of  such  river  to  be  trans- 
ported over  their  lines. 

1489.  No  CONDEMNATION— /or  landing.     Provided,  that 
no  right  shall  exist  under  this  act  to  condemn  any  real  estate 
for  landing  for  such  water  craft,  or  for  any  other  purpose. 


AND  EMINENT  DOMAIN.  193 

And  this  act  only  apply  to  such  railroad  companies  as  shall 
own  the  landing  for  such  water  craft. 

1 4: 90.  FERRY  PRIVILEGES — subject  to  rights  of  others,  and 
laws  regulating.  Provided,  also,  that  nothing  in  this  act 
shall  be  held  to  impair  or  affect  any  right  or  privilege  granted 
any  ferry  company  incorporated  under  the  laws  of  this  state; 
and  that  all  the  powers  and  rights  herein  granted  said  rail- 
road companies  shall  be  subject  to  whatever  rights  and  priv- 
ileges may  have  heretofore  been  granted  to  any  ferry  company 
in  this  state,  and  that  nothing  in  this  act  shall  prevent  said 
railroad  companies  from  being  subject,  in  the  use  of  such 
water  craft,  to  all  laws  of  the  state  regulating  ferries  now  in 
force  or  hereafter  to  be  in  force : 

1491.  CONSOLIDATION — right  of  state  protected.     And, 
provided,  further,  that  nothing  in  this  act  shall  be  held  or 
construed  to  authorize  any  railroad  or  railway  company  do- 
ing business  under  any  charter  granted  by  this  state,  to  con- 
solidate with  any  railroad  or  railway  company  out  of  this 
state,  so  as  to  form  one  continuous  line  of  railroad,  or  other- 
wise to  alter,  modify  or  repeal  any  provision  of  any  such 
charter  granted  by  this  state;  or  to  impair  the  rights  of  this 
state  as  now  reserved  to  it  in  any  such  charter.     {  B.  S.  1887, 
p.  1009,  §  47;  S.  &  C.,  p.  1922,  §  46;  Cothran,  p.  1148,  §  39.] 

An  act  to  empower  township  trustees  to  sell  and  convey  right  of  way  and  depot 
grounds  for  the  use  of  railroads  crossing  school  lands.  Approved  April  13,  1875.  In 
force  July  1,  1875.  Laws  of  1875,  p.  96. 

1492.  EIGHT  OF  WAY — over  school  lands — depot  grounds. 
§  1.     Be  it  enacted  by  the  people  of  the  state  of  Illinois,  rep- 
resented in  the  general  assembly,  That  the  trustees  of  schools 
of  any  township  concerned  are  hereby  authorized  and  empow- 
ered, in  their  corporate  capacity,  to  sell  and  convey  to  any 
railroad  company  which  may  construct  a  railroad  across  any 
of  the  public  school  lands  of  such  township,  the  right  of  way 
and  necessary  depot  grounds.     All  money  received  by  such 
trustees  for  any  right  of  way  or  depot  grounds  so  sold,  to  be 
turned  over  by  such  trustees  to  the  treasurer  of  the  township, 
for  school  purposes.     [K.  S.  1887,  p.  1009,  §  46;  8.  &  C.,  p. 
1922,  §  47;  Cothran,  p.  1148,  §  38.] 

CONDITIONAL   SALES   OF    RAILWAY    ROLLING   STOCK. 

An  act  to  render  valid  leases,  bailments  and  conditional  sales  of  railway  rolling 
stock.  Approved  May  30,  1881.  In  force  July|l,  1881.  [Laws  1881,  p.  126;  K.  S.  1887.  pp. 
1010,  1011,  §§  50.  51,  52,  53,  54,  55;  S.  &  C.,  p.  1923,  §§  48,  49,  50,  51,  53,  53;  Cothran,  p. 
1189a,  §§  172,  173,  174,  175,  176,  177.] 

1493.  CONDITIONAL  SALE  or  ROLLING  STOCK — sale,  lease 
or  contract  reserving  title  in  vendor  or  lessor  until  payment 
oj  price.     §  1.  Be  it  enacted  by  the  people  of  the  state  of 
Illinois,  represented  in  the  general  assembly.     In  all  cases 

where  any  cars,  carriages,  locomotives  or  vehicles  used  upon 
-u 


194  EAILBOADS,  WAREHOUSES, 

railways  shall  be  delivered  to  any  person  or  persons,  or  cor- 
poration, by  the  manufacturer  or  builder  thereof,  under 
lease,  bailment,  conditional  sale,  or  other  contract,  providing 
that  the  title  to  the  same  shall  remain  in,  or  not  pass  from, 
the  lessor,  bailor  or  conditional  vendor,  until  conditions 
fulfilled  according  to  the  terms  of  such  contract,  such  con- 
tract shall  be  held  and  considered  to  be  good,  valid  and 
effectual,  according  to  the  terms,  tenor  and  effect  thereof, 
both  in  law  and  in  equity,  as  against  all  persons  whatsoever, 
when  the  same  shall  be  reduced  to  writing,  acknowledged, 
and  filed  for  record,  as  hereinafter  provided.  The  provisions 
of  this  act  shall  apply  only  to  sales  made  by  manufacturers 
to  purchasers,  and  no  contract  made  in  pursuance  hereof 
shall  be  good  for  a  longer  period  than  four  (4)  years,  nor 
shall  any  such  contract  be  renewed.  And  it  shall  be  the 
duty  of  the  managers  of  all  such  corporations  to  list  and 
return  such  property  for  taxation  the  same  as  is  done  by  all 
other  railroads  owning  their  own  rolling  stock  in  this  state. 

1494.  INSTRUMENT— HOW  SIGNED  AND  EXECUTED.     §  2. 
The  instrument  of  writing  evidencing  such  contract  shall  be 
signed  by  the  lessor,  bailor  or  conditional  vendor,  and  by  the 
lessee,  bailee  or  conditional   vendee,   or  their  agents,    and 
acknowledged  by  one  or  other  of  them  or  their  agents,  in  the 
same  manner  as  provided  by  law  for  the  acknowledgment  of 
conveyances  of  real  estate,  and  shall  be  filed  for  record  in  the 
recorder's  office  of  each  county  through  or  into  which  the 
railroad  availing  itself  of  such  additional  purchase  is  operated. 

1495.  INSTRUMENT  TO  BE  ADMITTED  TO  RECORD.     §  3. 
Such   instruments,  when  properly   acknowledged,   shall   be 
admitted  to  record  at  the  request  of  any  person  interested, 
upon  the  payment  of  the   legal  fees,  without  regard  to  the 
residence  of  the  parties. 

1496.  INSTRUMENT  AS  EVIDENCE.    §  4.   Every  such  instru- 
ment executed,  acknowledged  and  recorded  in  pursuance  of 
this  act,  may  be  read  in  evidence  without  any  further  proof 
of  the  execution  thereof;  and  when  it  shall  appear,  by  affida- 
vit, or  otherwise,  that  the  original  thereof  is  lost  or  cannot  be 
produced,   a  copy  of  the   record  thereof,   certified  by  the 
recorder,  may  be  read  in  evidence  in  the  like  manner  and  to 
the  same  effect  as  the  original  thereof. 

1497.  To  WHAT  THIS  ACT  APPLIES.     §  5.     This  act  shall 
not  apply  to  railway  rolling  stock  leased  in  the  ordinary  way 
without  condition  regarding  purchase  and  sale,  nor  shall  it 
effect  the  legality  of  any  instrument  of  sale  or  lease  existing 
at  the  time  of  the  passing  of  this  act. 

1498.  CONTRACT,  NOTICE  OF,  TO  CREDITORS — STATEMENT, 
RECORDING.     §.  6.     Any  and  all  contracts  mentioned  in  sec- 


AND  EMINENT  DOMAIN.  195 

tion  one  (1)  of  this  act,  which  shall  be  executed,  acknowl- 
edged and  recorded,  in  pursuance  of  the  provisions  hereof, 
shall  be  held  and  considered  to  be  full  and  sufficient  notice 
to  all  persons  whatsoever,  but  shall  cease  to  be  notice  as 
against  third  persons  after  the  expiration  of  the  day  the  last 
payment  thereunder,  or  other  conditions  thereof,  shall  be- 
come due,  or  to  be  performed  by  the  terms  thereof:  Pro- 
vided, that  the  lessor,  bailor  or  conditional  vendor  shall, 
within  ten  (10)  days  from  the  first  of  January  in  each  year, 
file  a  sworn  statement  with  the  recorder  of  each  county  where 
the  lease  or  sale  bill  provided  for  in  section  one  ( 1 )  of  this 
act  is  recorded,  and  pay  the  recorder  for  putting  the  same 
on  record,  which  statement  shall  show  the  names  and  dates 
and  description  of  the  said  contract,  and  the  amount  due  and 
unpaid  thereon ;  and  upon  failure  to  make  such  statement,  or 
if  such  statement  is  false,  or  made  with  the  intent  to  deceive 
and  mislead  any  creditor  of  said  railroad,  in  any  way,  then 
such  lessor,  bailor  or  conditional  vendor  shall  thereby  lose 
all  benefits  which  he  or  they  would  otherwise  have  under  the 
provisions  of  this  act,  and  any  person  or  creditor  may  treat 
the  property  described  in  such  conditional  contract  for  sale, 
as  though  the  sale  had  been  unconditional,  and  not  subject 
to  any  lien  for  purchase  money  whatever,  and  may  levy 
execution  or  attachment  thereon,  or  purchase  the  same,  freed 
from  any  lien  of  such  lessor,  bailor  or  conditional  vendor. 

An  act  compelling  railroad  companies  in  this  state  to  build  and  maintain  depots  for 
the  comfort  of  passengers,  and  for  trie  protection  of  shippers  of  freight  at  towns  and  vil- 
lages on  the  line  of  their  roads.  Approved  May  23, 1877.  In  force  July  1, 1877.  L.  1877,p.  165. 

1499.  EEQUIRED  TO  BUILD  AND  MAINTAIN  DEPOTS.  §  1.  Be 
it  enacted  by  the  people  of  the  state  of  Illinois,  represented  in 
the  general  assembly,  That  all  railroad  companies  in  this  state 
carrying  passengers  or  freight  shall,  and  they  are  hereby  re- 
quired to  build  and  maintain  depots  for  the  comfort  of  pas- 
sengers and  for  the  protection  of  shippers  of  freight,  where 
such  railroad  companies  are  in  the  practice  of  receiving  and 
delivering  passengers  and  freight,  at  all  towns  and  villages 
on  the  line  of  their  roads  having  a  population  of  five  hundred 
or  more.  [R  8.  1887,  p.  1010,  §  48;  S.  &  C.,  p.  1924,  §  54; 
Cothran,  p.  1148,  §40.] 

1500.  Liability  of  company  for  an  injury  caused  by  defect  in  floor 
of  platform.    T.,  W.  &  W.  Ry.  v.  Brush,  67  111.  262. 

1500a.  Company  not  liable  to  proprietor  of  an  eating  house  for 
obstructing  passage  from  depot  to  such  house  when  dangerous  to  pass 
over  the  tracks.  Disbrow  v.  Oh.  &  N.  W.  Ry.,  70  111.  246. 

1501 .  Railroad  depot  grounds  and  passenger  houses  are  quasi  pxib- 
lic,  and  a  person  in  going  to  such  houses  and  passing  over  depot 
grounds  in  a  proper  manner,  is  not  a  trespasser.    /.  C,  R.  R.  v.  Ham- 
mer, 72  111.  347. 

1502.  What  is  such  negligence  in  persons  passing  over  such  grounds 
as  to  preclude  a  recovery.    Ib.. 


196  EAILKOADS,  WAREHOUSES, 

1503.  It  is  the  duty  of  a  railway  company,  before  the  departure  of 
its  passenger  train  to  clear  the  way  by  the  removal  of  freight  trains 
between  it  and  the  depot  buildings,  so  that  passengers  can  approach 
the  passenger  trains  with  safety.    Ch.  &  N.  W.  Ry.  v.  Coss,  73  111.  394. 

1504.  Regulation  that  men  unaccompanied  by  women,  shall  not  be 
allowed  to  remain  in  the  ladies'  room  is  a  reasonable  one.     T.,  W.  & 
W.Ry.y.  Williams,  77  111.  354. 

1505.  It  is  made  the  duty  of  railway  companies  to  establish  depots, 
and  so  operate  their  roads  as  to  afford  the  public  reasonable  safety  and 
dispatch  in  the  transaction  of  business;  and  to  effect  this,  it  is  neces- 
sary that  they  should  at  all  reasonable  times  provide  a  ready  and  con- 
venient means  of  access  to  their  stations  and  depots.    C.,  B .  &  Q.  R. 
R.  v.  Hans,  111  111.  114. 

1506.  PENALTY.-    §  2.     Any  railroad  company  in  this 
state  failing  to  comply  with  the  provisions  of  the  preceding 
section  after  this  act  shall  go  into  effect,  and  within  ninety 
days  after  notice  in  writing  of  its  failure  to  comply  with  the 
provisions  of  said  section  shall  have  been  served  upon  any 
agent  of  said  railroad  by  the  authorized  agent  of  any  town 
or  village   aggrieved,  shall  pay  for  each  and  every  day  it 
shall  neglect,  the  sum  of  fifty  dollars  ($50.00)  to  be  recov- 
ered in  an  action  of  debt  before  any  justice  of  [the]  peace,  in 
the  name  of  the  people  of  the  state  of  Illinois,  in  any  town 
or  village  aggrieved.     Said  penalty  to  be  paid  to  the  said 
town  or  village  for  the  school  fund.     [R.  S.  1887,  p.  1010, 
§  49;  S.  &  C.,  p.  1924,  §  55;  Cothran,  p.  1149,  §  41.] 

UNION  DEPOTS. 

An  act  authorizing  the  formation  of  union  depots  and  stations  for  railroads  in  this 
state.  Approved  April  7,  1875.  In  force  July  1,  1875.  [L.  1875,  p.  97.  R.  S.  1887,  pp. 
1011,  1012,  1013,  §8  56,  57,  58,  59,  60,  61 ;  S.  &  C..  pp.  1924,  1925.  1926,  §§  56, 57,  58,  59,  60,  61 ; 
Cothran,  pp.  1149, 1150, 1151,  §§  42,  43,  44,  45,  46;  47.] 

1507.  CORPORATION  —  HOW  FORMED  —  ARTICLES  OF  INCOR- 
PORATION —  CONTENTS.     §  1.   Be  it  enacted  by  the  People  of 
the  State  of  Illinois,  represented  in  the  General  Assembly, 
That  in  order  to  facilitate  the  public  convenience  and  safety 
in  the  transmission  of  goods  and  passengers  from  one  rail- 
road to  another,  and  to  prevent  the  unnecessary  expense,  in- 
convenience and  loss  attending  the  accumulation  of  a  number 
of  stations,  any  number  of  persons,  not  less  than  five,  are 
hereby  authorized  to  form  themselves,  or  any  two  or  more 
railroad  companies  may  themselves  form  or  join  individuals 
in  forming  a  corporation  for  the  purpose  of  constructing,  es- 
tablishing and  maintaining  a  union  station  for  passenger  or 
freight  depots,  or  for  both,  in  any  city,  town  or  place  in  this 
state,  with  the    necessary  offices  and  rooms  convenient  for 
the  same,  and  appurtenances  thereto,  and  for  that  purpose 
may  make  and  sign  articles,  in  which   shall  be  stated  the 
number  of  years  the  same  is  to  continue,  the  city,  town  or 
place  in  which  the  same  is  to  be  located,  the  amount  of  the 
capital  stock  of  said  company,  which  shall  not  exceed  three 


AND  EMINENT  DOMAIN.  197 

millions  of  dollars,  the  amount  of  each  share  of  stock,  the 
names  and  places  of  residence  of  its  directors,  which  shall 
not  be  less  than  five  nor  exceed  fifteen,  who  shall  manage  its 
affairs  for  the  first  year,  and  until  others  are  chosen  in  their 
place,  and  shall  also  state  the  amount  of  stock  taken  by  each 
subscriber. 

1508.  AETICLES  OF  ASSOCIATION — PRESENTATION  OF  WITH 
PETITION  TO  CIRCUIT  COURT.     §  2.     Any  association  of  per- 
sons or  corporations,  desiring  to  become  incorporated  under 
the  provisions  of  this  act,  shall  present  their  articles  of  asso- 
ciation to  the  circuit  court  of  the  county  in  which  such  city 
or  place  is,  or  to  the  judge  thereof  in  vacation,  with  the  peti- 
tion  from  such  members  for  a  certificate  of  incorporation 
under  the  provisions  of  this  act,  to  which  petition  shall  be 
added  or  appended  a  certificate  of  at  least  two  railroad  com- 
panies who  have  tracks  leading  into  said  city,  town  or  place, 
stating  its  public  utility,  and  that  they  expect  to  make  arrange- 
ments for  its  use  when  it  shall  be  constructed,  signed  by  the 
presidents  of  their  respective  companies. 

1509.  CERTIFICATE  OF  INCORPORATION.     §3.     If  the  cir- 
cuit court,  or  any  judge  thereof,  in  vacation,  shall  be  satisfied 
that  said  certificate  has  been  signed  by  such  companies,  then 
the  said  court  or  judge,  upon  filing  the  said  petition,  articles 
and  certificate  aforesaid,  with  the  clerk  of  the  court,  shall 
grant  to  the  said  association  a  certificate  of  incorporation, 
which  may  be  in  the  following  form,  to-wit: 

WHEREAS,  A,  B  and  C.  etc.,  (stating  the  names)  have  filed  in  the  office  of  the  clerk  of 
the  circuit  court  their  articles  of  association,  in  compliance  with  the  provisions  of  an  act 
entitled  "An  act  authorizing  the  formation  of  union  depots  and  stations  for  railroads  in 
this  state,"  approved  (stating  day  of  approval,)  with  their  petition  of  incorporation,  under 

the  name  and  style  of ;  they  are  therefore  hereby  declared  a  body  politic 

and  corporate,  by  the  name  and  style  aforesaid,  with  all  the  powers,  privileges  and  immu- 
nities granted  in  the  act  above  named.  By  order  of  circuit  court  (or  judge  thereof) , 

attest : ,  clerk  of  the  circuit  court  of  county 

And  thereupon,  upon  filing  the  same,  or  a  certified  copy 
thereof,  in  the  office  of  the  secretary  of  state,  the  said  associa- 
tion, from  the  time  of  such  filing,  shall  be  a  corporation  under 
the  laws  of  this  state. 

1510.  CORPORATE  POWERS  DEFINED — PROVISOS  AND  LIMI- 
TATIONS.    §  4.     Every  corporation  formed  under  this  act,  in 
addition  to  the  general  powers  conferred  by  the  laws  of  this 
state  in  relation  to  corporations,  shall  have  power — 

1511.  ACQUISITION  OF  PROPERTY — BY  CONVEYANCE  AND  BY 
CONDEMNATION.     First- — To  take  and  hold  such  real  estate  as 
it  may  acquire  either  by  conveyance  to  said  corporation,  or 
such  as  it  may  acquire  under  the  provisions  of  this  act  by 
condemnation,  and  which  shall  be  necessary  for  the  trans- 
action of  its  business. 

1512.  EXERCISE  OF  EMINENT  DOMAIN — FOR  WHAT  USES  AND 


198  BAILROADS,  WAREHOUSES, 

PUBPOSES.  Second — To  take,  occupy  and  condemn  any  land 
and  real  estate,  or  any  interest  therein,  needed  for  the  estab- 
lishment of  such  union  station  or  depot  and  necessary 
approaches  thereto,  and  the  same  proceedings  shall  be  had 
therefor  as  are  now  or  may  hereafter  be  provided  by  law, 
concerning  the  condemnation  of  lands  for  or  by  railroad 
companies  in  the  state,  so  far  as  such  laws  are  applicable  to 
the  purposes  of  this  act;  and  when  so  condemned,  the  said 
land  and  any  interest  therein  shall  belong  to  such  corpora- 
tion for  the  purposes  of  this  act:  Provided,  that  nothing  in 
this  act  shall  be  construed  to  authorize  the  condemnation  as 
depot  grounds  of  any  railroad  which  is  not  of  the  same 
guage  of  those  joining  in  the  petition:  Provided  further, 
that  none  of  the  provisions  of  this  act  relating  to  the  con- 
demnation of  land  shall  extend  to  any  land,  or  lands  to 
which  any  municipal  corporation  has  a  title.  [See  eminent 
domain,  ante  179.] 

1513.  LAYING    TRACKS — MAKING   CONNECTIONS— USE    OF 
STREETS — DAMAGES.     Third — "With  the  consent  of  the  cor- 
porate authorities  of  the  city,  town  or  place  in  which  said  sta- 
tion or  depot  is  to  be  constructed,  to  have  the  right  to  lay 
the  necessary  track  or  tracks  over,   upon   or   under   such 
streets  or  roads  of  said  city,  town  or  place  as  may  be  neces- 
sary to  make  the  necessary  connections  with  railroads  pro- 
posing to  use  said  union  depot,  and  may,  with  such  consent, 
also  construct  such  station  or  depot  under,  over  or  upon  any 
such  streets  or  roads:     Provided,  that  all  injury,  if  any,  that 
may  be  occasioned  to  the  property  fronting  on  any  streets 
or  roads,  by  the  laying  of  any  railroad  tracks,  or  the  location 
of  any  depot  upon  such  streets  or  roads,  under  the  provisions 
of  this  act,  shall  be  assessed  and  the  assessment  paid  into 
the  city  treasury,  to  the  use  of  the  owners  of  the  property  s  o 
injured  by  the  corporation  so  appropriating  such  streets  or 
roads,   before  such  corporation  shall  have  the  right  to  lay 
any  track  or  locate  any  depot  over,  under  or   upon   such 
streets  or  roads. 

1514.  BORROWING  MONEY — MORTGAGE  or  ITS  PROPERTY. 
Fourth — From  time  to  time  to  borrow  such  sums  of  money 
as  may  be  necessary  for  the  construction,  completion  and 
furnishing  or  repairing  of  such  station  or  depot,  and  to  issue 
or  dispose  of  their  bonds  for  such  •amounts,  at  such  prices 
as  they  shall  think  proper,  and  to  mortgage  their  corporate 
property  and  franchises   for  the  purpose   of   securing  the 
same. 

1515.  RECEIVING  SUBSCRIPTIONS — LEGISLATIVE  CONTROL 
RESERVED.     Fifth — To  open,  from  time  to  time,  books  of  sub- 
scription to  the  remainder  of  the  capital  stock  not  taken  by 


AND  EMINENT  DOMAIN.  199 

the  subscribers  to  the  articles  of  association.  The  general 
assembly  shall  have  power  to  enact,  from  time  to  time,  laws 
to  prevent  and  correct  abuses,  and  to  prevent  unjust  discrimi- 
nation and  extortions  in  the  management  and  prosecution  of 
the  business  of  any  corporation  formed  under  this  act,  and 
to  enforce  such  laws  by  adequate  penalties. 

1516.  DIRECTORS — ELECTION  AND  TERM  OF  OFFICE — NOTICE 
OF  ELECTION.     §  5.     After  the  directors  named  in  the  articles 
of  corporation  shall  have  served  for  one  year,  there  shall  be 
an  annual  election  of  directors,  to  be  conducted  in  the  man- 
ner prescribed  in  the  constitution  of  this  state.    The  directors 
so  elected  shall  serve  for  the  ensuing  year,  and  notices  of 
such  election,  appointing  a  time  and  place,  shall  be  given  by 
the  directors  as  originally  constituted  for  the  first  annual 
election,  and  thereafter  by  their  successors  in  office,  which 
notice  shall  be  published  not  less  than  twenty  days  previous 
thereto,  in  some  newspaper  published  in-  the  English  lan- 
guage, in  the  city,  town  or  place  in  which  said  station  or 
depot  is  located. 

1517.  USE    OF    UNION   DEPOT — NO   DISCRIMINATION.      §  6. 

There  shall  be  no  discrimination  against  or  in  favor  of  any 
railroad  company  using  or  desiring  to  use  the  said  union 
depot,  but  the  terms,  conditions  and  regulations  adopted  for 
the  use  of  the  same,  shall  be,  so  far  as  practicable,  uniform, 
and  apply  alike  to  all  railroads  using  or  desiring  to  use  said 
union  depot. 

FENCING  AND  OPERATING  RAILROADS. 

An  act  in  relation  to  fencing  and  operating  railroads.     Approved  March  31,  1874.     In 
force  July  1, 1874. 

1518.  FENCING  TRACK — CATTLE  GUARDS —DAMAGES  TO 
STOCK — ATTORNEY'S  FEES.     §  1.  Be  it  enacted  by  the  people  of 
the  state  of  Illinois,  represented  in  the  general  assembly, 
That  every  railroad  corporation,  shall,  within  six  months  after 
any  part  of  its  line  is  open  for  use,  erect  and  thereafter  main- 
tain fences  on  both  sides  of  its  road  or  so  much  thereof  as  is 
open  for  use,  suitable  and  sufficient  to  prevent  cattle,  horses, 
sheep,  hogs  or  other  stock  from  getting  on  such  railroad,  except 
at  the  crossings  of  public  roads  and  highways,*  and  within  such 
portion  of  cities  and  incorporated  towns  and  villages  as  are 
or  may  be  hereafter  laid  out  and  platted  into  lots  and  blocks*, 
with  gates  or  bars,  at  the  farm  crossings  of  such  railroad, 
which  farm  crossings  shall  be  constructed  by  such  corpora- 
tion when  and  where  the  same  may  become  necessary,  for 
the  use  of  the  proprietors  of  the  lands  adjoining  such  rail- 
road; and  shall  also  construct,  where  the  same  has  not  al- 
ready been  done,  and  thereafter  maintain  at  all  road  crossings 
now  existing  or  hereafter  established,  cattle-guards,  suitable 


200  KAILROADS,  WAREHOUSES, 

and  sufficient  to  prevent  cattle,  horses,  sheep,  hogs  and  other 
stock  from  getting  on  such  railroad;  and  when  such  fences  or 
cattle-guards  are  not  made  as  aforesaid,  or  when  such  fences 
or  cattle-guards  are  not  kept  in  good  repair,  such  railroad 
corporations  shall  be  liable  for  all  damages  which  may  be 
done  by  the  agents,  engines  or  cars  of  such  corporation,  to 
such  cattle, 'horses,  sheep,  hogs  or  other  stock  thereonf,  and 
reasonable  attorney's  fees  in  any  court  wherein  suit  is 
brought  for  such  damages,  or  to  which  the  same  may  be  ap- 
pealedf;  but  where  such  fences  and  guards  have  been  duly 
made  ^and^  kept  in  good  repair,  such  railroad  corporation 
shall  not  be  liable  for  any  such  damages,  unless  negligently 
or  willfully  done.  [B.  S.  1887,  p.  1013,  §  62;  jS.  &  C.,  p.  1927, 
§62;  Cothran,  p.  1151,  §48.] 

Amendment  of  1877.  May  23,  1877,  substituted  single  for  double 
damages. 

Amendment  of  1879  substituted  words  between  asterisks  (* —  — *) 
for  "  and  within  such  portion  of  cities  and  incorporated  towns  and 
villages,  as  are  or  may  be  hereafter  laid  out  and  platted  into  lots  and 
blocks,"  and  inserted  clause  as  to  attorney's  fees  between  daggers 
(t 1). 

CONSTITUTIONALITY  OF  STATUTE. 

1519.  POLICE  REGULATION — imposing  additional  duties.     The 
act  of  1855  requiring  roads  open  for  use,  to  be  fenced,  and  making 
them  liable  for  a  failure  to  do  so  to  pay  all  damages  to  stock,  is  a 
proper  police  regulation,  and  not  an  ex  post  facto  law  or  law  impair- 
ing the  obligations  of  a  contract.    O.  &  M.  R.  R.  v.  McClelland,  25  111. 
140;  C.,  M.  dkSt.P.  R.  R.  v.  Dumser,  109  ill.  402. 

1520.  Under  the  police  power,  the  legislature  may  require  existing 
railway  corporations  to  fence  their  roads  and  put  in  cattle-guards,  al- 
though no  such  right  may  be  reserved  in  their  charters .     T.,  W.  &  W. 
Ry.  v.  Jacksonville,  67  111.  37. 

1521.  Act  of  1874,  making  company  neglecting  to  fence  liable  for 
double  damages,  is  not  unconstitutional.    C.  &  St.  L.R.  R.  v.  Peoples, 
92  IU.  97;  C.  &  St.L.  R.  R.  v.  Warrington,  92  111.  157. 

1522.  Railway  corporations  may  be  compelled  to  fence  their  tracks 
by  the  imposition  of  fines,  penalties  or  forfeitures,  and  a  law  provid- 
ing a  forfeiture  or  penalty  for  a  neglect  to  fence,  which  is  given  to 
the  owners  of  stock  killed,  is  not  open  to  the  constitutional  objection 
of  depriving  one  of  property  "  without  due  process  of  law."    C.  &  St. 
L.  R.  R.  v.  Warrington,  92  111.  157. 

1523.  In  what  manner  and  to  what  extent  railway  corporations 
shall  be  required  to  inclose  their  tracks,  and  when  it  shall  .be  done, 
would  seem  to  be  ordinarily  within  the  legislative  discretion.    C.,  M. 
&  St.  P.  R.  R.  v.  Dmnser,  109  111.  402. 

1524.  As  a  police  regulation  for  the  protection  of  the  public  safety 
in  travel  by  railroads,  the  legislature  may  well  require  the  fencing  of 
such  roads,  and  provide  penalties  for  securing  the  performance  of 
such  requirements.    P.,  D.  &  E.  Ry.  v.  Duggan,  109  111.  537. 

1525.  The  act  of  1879  making  railway  companies  liable  for  attor- 
ney's fees  in  addition  to  the  damages  sustained  by  the  owners  of  stock 
through  a  neglect  to  fence  their  track  and  keep  the  same  in  repair,  is 


AND  EMINENT  DOMAIN.  201 

not  open  to  the  objection  of  special  legislation.  It  may  be  upheld  as 
being  in  the  rfature  of  a  penalty  for  a  neglect  to  comply  with  a  proper 
police  regulation.  P.,  D.  &  E.  Ry.  v.  Duggan,  109  111.  537 . 

CONSTRUCTION. 

1526.  APPLICATION.    The  act  of  1855  to  regulate  the  duties  and 
liabilities  of  railroad  companies,  applies  to  companies  previously  incor- 
porated.   Galena  &  Ch.  Union  R.  R.v.  Crawford,  25  111.  529. 

1527.  REMEDIAL,  NOT  PENAL.    This  statute  is  not  a  penal  statute 
but  is  remedial  and  willjreceive  a  liberaljconstruction.    O.  &  M.  R.  R. 
v.  Brubaker,  47  111.  462. ' 

1528.  FARM  CROSSINGS.    The  word  "necessary"  in  the  statute  re- 
quiring railway  corporations  to  construct  farm  crossings  "when  and 
where  the  same  may  become  necessary  for  the  use  of  proprietors  of 
lauds,  adjoining  such  railroads,"  was  used  in  its  more  popular  sense, 
and  is  equivalent  to  the  words  "reasonably  convenient."    Chalcraft  v. 
L.  E.  &  St.  L.  R.  R.,  113  111.  86. 

1529.  Where  the  erection  and  maintenance  of  a  proposed  farm 
crossing  over  a  railroad  track  will  directly  affect  the  operation  of  the 
road  as  a  means  of  public  transportation,  by  seriously  increasing  the 
danger  of  collisions,  this  will  be  a  sufficient  reason  why  such  cross- 
ing should  not  be  made,  and  if  attempted  to  be  made  by  the  land- 
owner, he  may  be  restrained  from  doing  so  by  injunction.    Ib. 

1529a.  Railroads  must  be  fenced  or  enclosed  with  gates  or  bars  at 
all  road  crossings  which  are  not  used  and  treated  by  the  people  and 
road  authorities  as  public  highways.  T.  H.  &  I.  R.  R.,  v.  Elam,  20 
Bradw.  603. 

EFFECT  OF  OTHER  LAWS  ON  THIS  PROVISION. 

1530.  The  act  of  1867,  to  -prevent  domestic  animals  from  running 
at  large  in  certain  counties,  is  not  so  far  repugnant  to  the  general  rail- 
road law  requiring  the  fencing  of  railroads,  as  to  repeal  the  same  by 
implication.    O.  &  M.  Ry.  v.  Jones,  63  111.  472. 

1531.  The  act  of  1869,  giving  the  land-owner  a  right  to  build  a 
fence  along  the  track  on  his  own  premises,  and  hold  the  company  liable 
therefor  upon  its  failure  to  fence  on  notice,  does  not  release  railway 
companies  from  their  liability  under  the  act  of  1855  for  stock  killed. 
T.,  P.  &  W.  Ry.  v.  Pence,  68  111.  524. 

1582.  The  law  prohibiting  domestic  animals  from  running  at  large 
in  force  October  1,  1872,  does  not  by  implication,  repeal  or  modify  any 
of  the  provisions  of  the  act  of  1855  requiring  railway  companies  to 
fence  their  roads,  and  the  same  is  true  in  regard  to  the  law  preventing 
male  animals  from  running  at  large.  R.,  R.  I,  &  St.  L  R.  R.  v.  Irish, 
72  111.  404. 

1533.  WITHIN  WHAT  TIME  TO  FENCE — burden  of  proof.     The 
plaintiff  mustfshow  that  the  road  has  been  open  to  use  six  months 
prior  to  the  injury  of  his  stock.     W.,  St.  L.  &  P.  Ry.  v.  Neikirk,  13 
Bradw.  387;  0.  &  M.  R.  R.  v.  Brown,  23  111.  94;  0.  &  M.  R.  R.  v.  Meisen- 
heimer,  27  111.  30;  O.  &  M.  R.  R.  v.  Jones,  27  111.  41;  T.,  P.  &  W.  Ry.  v. 
Wickery,  44  111.  76. 

1534.  The  declaration  must  show  that  the  road  has  been  open  to. 
use  six  months  prior  to  the  accident  and  the  neglect  to  fence.    Galena 
&  Ch.  Union  R.  R.  v.  Sumner,  24  111.  631. 

1535.  An  averment  in  a  declaration :  "nevertheless  more  than  six 
months  after  said  railroad  was  in  use,  to- wit:  on  the  1st  day  of  May, 


202  EAILROADS,  WAREHOUSES, 

1864,  the  said  defendant  neglected  to  erect,"  &c.:  Held,  a  sufficient 
breach  of  the  statutory  duty.  Great  Western  R.  R.  v.  Hanks,  36  111. 
281. 

1536.  An  averment  that  the  road  has  been  in  use  more  than  six 
months  prior  to  the  accident  and  still  remains  unfenced,  by  reason  of 
which  neglect  of  duty,  the  injury  occurred,  is  material  and  must  be 
proved.    C.  &  A.  R.  R.  v.  Taylor,  40  111.  280. 

1537.  An   omission   to  state  in  an  instruction  that   it   must  be 
proved  that  the  road  had  been  operated  for  six  months  prior  to  the 
accident,  is  a  harmless  error,  where  it  clearly  appears  that  the  road 
had  been  in  use  for  a-  much  longer  period.  Ch.  &  N.  W.  Ry.  v.  Dement, 
44  111.  74. 

1538.  The  obligation  of  a  railway  company  to  fence  its  line  of 
road  does  not  attach  until  it  has  been  in  operation  for  six  months. 
T.,  P.  &  W.  Ry.  v.  Miller,  45  111.  42. 

1539.  If  a  company  which  has  not  been  in  operation  six  months 
has  built  a  fence,  it  will  be  under  no  obligation  to  keep  it  in  repair 
until  the  duty  to  fence  has  attached.    Ib. 

1540.  CHANGE  OF  OWNERSHIP.    A  purchaser  of  a  railroad  which 
has  been  open  for  six  months  before  its  sale,  will  be  liable  for  injury 
to  stock  resulting  from  the  want  of  a  fence,  before  six  months  after 
the  change  of  ownership.    T.,  P.  &  W.  Ry.  v.  Arnold,  51  111.  241. 

1541.  In  such  case  the  new  owner  is  not  entitled  to  a  period  of  six 
months  after  the  change  of  ownership  in  which  to  comply  with  the 
law,  but  takes  possession  subject  to  all  consequences  resulting  from  a 
want  of  compliance  with  the  law.    Ib. 

1542.  An  averme  nt  that  the  road  at  the  place  where  the  injury  oc- 
curred has  been  opened  for  six  months  is  not  sufficient,  where  it  does 
not  appear  but  that  the  stock  strayed  upon  the  track  at  another  place 
where  the  road  had  not  "been  opened  for  six  months.    T.  P.  &  W.  Ry. 
v.  Darst,  51  111.  365. 

1543.  If  an  instruction  for  the  plaintiff  undertaking  to  enumerate 
the  facts  upon  which  a  recovery  may  be  had,  omits  the  essential  facts 
that  the  road  has  been  opened  six  months,  a  judgment  for  the  plain- 
tiff will  be  reversed,  unless  such  omitted  fact  is  shown  by  the  evidence. 
Ch.  &  N.  W.  Ry.  v.Diehl,  52  111.  441. 

1544.  Declaration  held  insufficient  on  special  demurrer  to  show 
with  sufficient  certainty  that  the  company  had  failed  to  erect  a  proper 
fence  for  six  months  after  the  road  had  been  opened.  T.,  P.  &  W.  Ry. 
v.  Bookless,  55  111.  230. 

1545.  A  railway  company  is  liable  under  the  statute  if  it  fails  to 
fence  within  six  months  after  it  begins  to  run  trains  on  the  track  for 
construction  purposes.    Being  under  the  control  of  contractors  will 
not  change  this  liability.    R.  R.  I.  &  St.  L.  R.  R.  v.  Heflin,  65  111.  366. 

1546.  EVIDENCE.    Proof  that  plaintiff 's  steers  we're  killed  by  the 
trains  of  the  company  in  the  fall  of  1870,  and  his  horses  and  hogs  in 
the  summer  of  1871:  Held,  as  showing  inferentially  that  the  road  had 
been  open  for  use  six  months  before  the  horses  and  hogs  were  killed . 
R.,  R.  I.  &  St.  L.  R.  R.  v.  Spillers,  67  111.  167. 

EXCEPTED  PLACES. 

1547.  DEPOT  GROUND.    A  railway  company  is  not  bound  to  fence 
the  grounds  about  a  station.    This  section  is  not  to  be  construed  to 
embrace  depots  and  stations.    T.  H.  &  Ind.  R.  R.  v.  Bowles,  16 
Bradw.  261. 

1548.  PLEADING.     In  an  action  under  the  statute  the  plaintiff 


AND  EMINENT  DOMAIN.  203 

should  aver  in  his  declaration  that  the  animals  were  not  killed  within 
the  limits  of  a  village,  &c.    C.,  B.  &  Q.  R.  R.  v.  Carter,  20  111.  390. 

1549.  The  declaration  must  not  only  show  the  duty  of  the  company 
to  fence,  and  its  failure  to  do  so,  but  must  also  negative  the  exceptions 
in  the  act,  and  aver  that  the  animals  were  not  injured  at  any  point  on 
the  road  within  those  exceptions,  &c.  Galena  &  Ch.  Union  R.  R.  v. 
Sumner,  24  111.  631. 

1560.  To  recover,  plaintiff  must  prove'  every  material  allegation  in 
his  declaration,  and  that  the  injury  did  not  occur  at  any  of  the  excepted 
places,  and  this  though  the  declaration  is  defective,  in  not  negativing 
the  exceptions  in  the  statute.    O.  &  M,  R.  R.  v.  Brown,  23  111.  94. 

1561.  The  declaration  should  show  that  the  injury  to  the  stock  did 
not  happen  at  a  place  where  the  company  is  not  bound  to  maintain  a 
fence.    III.  C.  R.  R.  v.  Williams,  27  111.  48. 

1562.  If  a  horse  gets  upon  the  track  within  a  city  and  is  driven  by 
a  train  beyond  the  city,  where  he  is  killed  without  negligence  on  the 
part  of  the  company,  it  will  not  be  liable.    Great    Western  R.  R.  v. 
Northland,  30  111.  451. 

1563.  In  an  action  under  the  statute,  the  declaration  must  negative 
all  the  exceptions  in  the  statute.    Great  Western  R.  R.  v.  Bacon,  30 
111.  347. 

1564.  In  an  action  before  a  justice  of  the  peace,  the  plaintiff  must 
show  by  proof  that  there  was  no  public  crossing  where  the  killing  or 
injury  occurred,  and  that  the  company  was  bound  to  fence  at  that 
point.    0.  &  M.  R.  R.  v.  Taylor,  27  111.  207. 

1565.  The  declaration  need  not  negative  the  possibility  that  the 
animal  may  have  been  killed  at  a  farm  crossing.    If  road  not  properly 
fenced  at  such  crossing  the  company  is  liable,  and  if  properly  fenced 
that  is  a  matter  of  defence.    Great  Western  R.  R.  v.  Helm,  27  111.  198. 

1566.  An  averment  that  the  animal  killed  got  on  the  track  "  with- 
out the  limits  of  towns,  cities  and  villages,  and  not  at  the  road  cross- 
ings or  public  highways,"  is  sufficient.   The  important  point,  is  where 
the  animal  got  upon  the  track,  and  not  where  it  was  killed.     Great 
Western  R.  R.  v.  Hanks,  36  111.  281 . 

1567.  It  is  sufficient  if  the  declaration  negatives  the  killing  in  the 
excepted  places  named  in  the  statute.    Ib. 

1567a.  DEPOTS.  A  railway  company  is  not  required  to  fence  its 
track  upon  its  depot  grounds  in  a  town.  Galena  &  Ch.  Union  R.  R.  v. 
Griffin,  31  111.  303. 

1568.  The  question  of  the  obligation  of  a  railway  company  to  fence 
its  road  at  a  particular  place  is  one  of  law  and  not  of  fact,  and  should 
not  be  left  to  a  jury  to  decide.     /.  C.  R.  R.  v.  Whalen,  42  111.  396. 

1569.  The  want  of  an  averment  that  a  fence  was  necessary  at  the 
place  where  stock  in  injured,  is  cured  by  proof  on  the  trial,  and  a  ver- 
dict for  the  plaintiff.    T.,  P.  &  W.  Ry.  v.  McClannon,  41  111.  238. 

1570.  The  necessity  of  fencing  a  railroad  at  a  given  point  is  not 
obviated  by  there  being  an  embankment  at  that  place  from  twelve  to 
twenty  feet  in  height,  it  not  appearing  it  was  sufficient  to  prevent 
stock  from  getting  upon  the  track.     T.,  P.  &  W.  Ry.  v.  Sweeney,  41 
111.  226. 

1571.  Where  testimony  is  admitted  without  objection,  showing  an 
injury  to  animals,  happened  at  a  place  where  the  company  wa  sbound 
to  fence  its  road,  an  instruction  will  not  be  erroneous,  merely  because 
it  fails  to  exclude,  all  the  places  excepted  in  the  statute.    T.,  P.  &  W. 
Ry.  v.  Parker,  49  111.  385. 

1572.  It  is  not  enough  to  aver  in  the  declaration  that  the  road  was 


204  [3^3  EAILEOADS,  WAREHOUSES, 

not  fenced  at  the  place  where  the  injury  occurred,  as  the  stock  may 
have  got  upon  the  track  at  another  place  where  the  road  was  fenced. 
T.,  P.  &  W.  Ry.  v.  Darst,  51  111.  365. 

1573.  Where  the  evidence  shows  that  the  stock  was  not  killed 
within  a  corporation  or  near  a  crossing,  the  jury  may  infer  that  it 
was  not  killed  within  the  limits  of  a  city,  town  or  village.    St.  L.  &  S. 
E.  Ry.  v.  Casner,  72  111.  384. 

1574.  Where  a  railway  company  had  a  switch  outside  the  platted 
limits  of  an  incorporated  village,  but  adjacent  to  the  same,  and  in  this 
locality  there  was  a  ware  house  and  a  store,  and  it  was  used  as  much 
by  the  public  as  any  part  of  the  village,  and  the  switch  was  so  located 
that  it  could  not  be  reached  by  teams  for  loading  and  unloading  if  a 
fence  was  erected  there:  Held,  that  these  facts  were  sufficient  to  jus- 
tify the  inference  that  the  place  was  ground  open  to  the  public,  where 
a  fence  was  not  required.    T.  W.  &  W.  Ry.  v.  Chapin,  66  111.  504. 

1575.  A  railway  company  is  not  bound  to  fence  its  track,  or  make 
cattle-guards  within  the  limits  of  a  village;  and  a  place  where  there  is 
a  station  house,  a  ware  house,  a  store,  a  blacksmith  shop,  a  post  office 
and  five  or  six  dwelling  houses,  whether  they  are  situate  upon  regu- 
larly laid  out  streets  or  not,  comes  fully  up  to  the  requirements  of  a 
village  for  the  purposes  of  excusing  a  railroad  company  from  fencing 
its'  track  therein.    T.  W.  &  W.  Ry.  v.  Spangler,  71  111.  568. 

1576.  A  town  or  village,  within  the  meaning  of  the  statute,  may 
exist,  although  there  is  no  plat  of  the  same  dedicating  the  streets,  &c., 
in  the  manner  pointed  out  in  the  statute.    /.  C.  R.  R.  v.  Williams,  27 
111.  48. 

1576a.  A  place  composed  of  a  few  houses  with  a  population  of  two 
hundred  persons  is  a  village  within  the  limits  of  which  a  railway  com- 
pany is  not  bound  to  fence  its  road,  Ewing  v.  C.  &  A.  R.  R.,  72  111.  25. 

1577.  It  will  be  presumed  that  houses  compose  a  village.    Where 
the  proof  is  that  an  animal  was  killed  beyond  the  houses,  it  will  be 
presumed  it  was  killed  outside  of  the  village.    If  the  village  extends 
beyond  the  houses  and  includes  the  place  were  the  killing  occurred, 
the  company  must  show  that  fact.    O.  &  M.  R.  R.  v.  Irvin,  27  111.  178; 
Ewing  y.  C.  &  A.  R.  R.,  72  111.  25. 

1578.  *  The  court  is  not  disposed,  if  it  had  the  power,  to  extend  the 
exception  in  the  statute  to  cases  not  therein  named,  without  proof  of 
facts  showing  a  necessity  for  relieving  railway  companies  from  the 
duty  to  fence  their  tracks.    C.,  M.  &  St.  P.  R.  R.  v.  Dumser,  109  111. 
402. 

1579.  Where  there  is  no  public  necessity  for  keeping  a  railroad 
track  open  at  any  point,  whether  in  or  out  of  the  limits  of  a  city,  town 
or  village,  the  company  must  fence  the  same,  or  respond  in  damages 
for  an  injury  to  stock  resulting  from  an  omission  to  do  so.    Ib. 

1680.  Where  a  railway  company  has  a  station  at  a  place  on  its  road 
where  trains  stop  to  receive  and  discharge  passengers  and  freights, 
which  is  not  in  a  city,  town  or  village  laid  out  into  lots  and  blocks, 
and  has  side  tracks  at  such  station,  this  court  cannot  as  a  matter  of 
law  hold  that  the  company  is  exempted  from  fencing  its  track  at  such 
place.  C.,  M.  &  St.  P.  R.R.v.  Dumser,  109  111.  402. 

1581.  This  statute  is  not  intended  to  apply  to  public  stations  or 
depot  grounds,  although  they  may  not  be  within  the  limits  of  a  city, 
town  or  village,  or  at  a  highway  crossing.    But  side  tracks  not  at 
stations  or  depots,  and  such  parts  of  side  tracks  as  do  not  constitute 
a  part  of  the  depot  yard,  may  well  be  held  to  be  within  the  statute. 
C.,  B.&Q.R.R.  v.Hans,  111  111.  114. 

1582.  CATTLE  GUARDS  IN  STREET  .    If  a  railway  company  con- 


AND  EMINENT  DOMAIN.  205 

structs  cattle-guards  within  the  limits  of  a  town  it  must  keep  the 
same  in  repair.     Ch.  &  R.  Island  R.  R.  v.  Reid,  24  111.  144. 

1583.  What  is  not  a  public  road  crossing,  but  is  a  farm  crossing. 
P.,  P.  &  J.  R.R.\.  Barton,  80  111.  72. 

EXTENT  OF  LIABILITY  FOR  NEGLECT  TO  FENCE. 

1584.  INJURY  TO  EMPLOYE.     The  liability  of  a  railway  company 
to  an  employe  or  servant  for  a  personal  injury  growing  out  of  its 
neglect  to  fence  its  track,  doubted.    Liability  seems  to  be  limited  to 
owners  of  stock  injured.     Wabash  Ry.  v.  Brown,  2  Bradw.  516. 

1585.  Railway  companies  not  bound  to  maintain  a  fence  as  a  pro- 
tection to  its  employes.    The  duty  to  fence  is  imposed  as  a  protection 
of  the  owners  of  cattle.     Wabash  Ry.  v.  Brown,  5  Bradw.  590. 

1586.  The  liability  for  injury  to  animals  from  a  neglect  to  fence  is 
limited  to  such  damages  as  may  be  done  by  the  agents,  engines  or  cars 
of  the  company,  and  not  to  injury  resulting  from  fright.    /.,  B.  &  W, 
Ry.  v.  ScJiertz,  12  Bradw.  304;  Ch.  &  N.  W.  Ry.  v.  Taylor,  8  Bradw. 
108. 

1587.  The  injury  for  which  the  statute  gives,  an  action,  must  be 
caused  by  actual  collision  with  the  engine  or  cars  of  the  company. 
Consequential  damages  resulting  from  fright  to  animals,  not  caused 
by  actual  collision,  cr  any  negligence  or  willful  misconduct  on  the  part 
of  the  company,  are  not  embraced  in  the  statute.     Schertz  v./.,  B.  & 
W.Ry.,  107  111.  577. 

1588.  Where  a  horse  gets  on  the  track  for  want  of  a  fence  and  is 
frightened  by  an  approaching  train  and  in  its  flight  is  injured  by 
jumping  a  cattle-guard  or  by  running  into  a  wire  fence,  without  neg- 
ligence in  those  having  charge  of  the  train,  the  company  will  not  be 
liable.    76. 

1589.  DAMAGE  TO  CROPS.    The  statute  is  not  intended  for  the 
protection  of  land-owners  from  damage  to  their  crops  resulting  from 
a  neglect  to  fence.    The  liability  for  a  neglect  to  fence  extends  only 
to  the  owners  of  cattle  injured  thereby.    P.,  D.  &  E.  Ry.v.  Schiller, 
12  Bradw.  443. 

1590.  FOR  WHAT  ANIMALS.    The  statutory  liability  extends  to 
the  killing  or  injury  of  mules  and  asses,  these  animals  being  included 
in  the  terms  "horses  and  cattle."    O.&M.  R.R.  v.Brubaker,  47  111. 
462;  T.,  W.  &  W.  Ry.  v.  Cole,  50  111.  184. 

1591.  INJURY  MUST  BE  CAUSED  BY  WANT  OF  FENCE  —  or  defects 
therein.    No  liability  for  stock  killed  which  break  over  a  sufficient 
fence.    The  bad  condition  of  the  fence  at  other  places  cannot  be 
shown.    C.,B.&Q.  R.R.v.  Farrelly,  3  Bradw.  60;  39  111.  433. 

1591a.  The  statutory  duty  of  a  railroad  company  to  maintain  suit- 
able and  sufficient  cattle-guards  to  prevent  stock  from  getting  on  its 
track  is  not  complied  with,  where,  for  'an  unreasonable  time,  it  per- 
mits its  guards  to  remain  filled  up  with  snow,  ice  or  any  other  sub- 
stance which  destroys  their  usefulness.  I.,B.&  W.Ry.v.Drum,21 
App.  Rep.  331. 

15916.  ATTORNEY'S  FEES  .  Reasonable  attorney's  fees  may  be  re- 
covered for  the  second  as  well  as  the  first  trial,  although  the  new  trial 
was  granted  by  consent.  Not  allowed  for  services  in  appellate  court. 
J.,  B.  &W.R.  R.  v.  Buckles,  21  App.  R.  181. 

NEGLECT  TO  FENCE  ROAD. 

1592.  CONNECTION  OF  OMISSION  WITH  INJURY.    Where  a  railway 
company  neglects  to  build  a  fence  as  it  had  agreed  to  do,  its  liability 


206  KAILROADS,  WAREHOUSES, 

for  sheep  killed  will  not  depend  upon  the  fact  whether  such  fence 
would  have  made  a  perfect  inclosure  of  the  sheep,  but  entirely  upon 
the  fact  whether  the  neglect  of  duty  contributed  to  the  injury.  Joliet 
&  Northern  Ind.  R.  R.  v.  Jones,  20  111.  221. 

1593.  Although  a  railway  company  may  fail  to  make  a  fence  ac- 
cording to  its  contract,  it  will  not  be  liable  to  the  other  party  for  sheep 
killed,  where  it  does  not  appear  that  they  got  upon  the  track  because 
the  fence  was  not  built,  and  it  appears  that  his  negligence  in  respect 
to  the  animals  was  the  direct  and  proximate  cause  of  the  injury.  Ib. 

1594:.  In  an  action  under  the  statute  to  recover  for  stock  killed,  it 
is  sufficient  to  prove  the  neglect  to  fence  and  the  killing.  No  other 
negligence  need  be  proved.  T.  H.,  A.  &  St.  L.  R.  R.  v.  Augustus,  21 
HI.  186. 

1595.  Where  the  declaration  counts  only  upon  a  common  law  lia- 
bility, negligence  in  the  management  of  the  train  must  De  shown,  and 
no  recovery  can  be  had  for  a  mere  neglect  to  fence  the  track.    T.  H., 
A.  &  St.  L.  R.  R.  v.  Augustus,  21  111.  186. 

1596.  Liability  for  suffering  a  cattle-guard  in  a  public  street  to  get 
out  of  repair.    C.  &  R.  I.  R.  R.  v.  Reid,  24  111.  144. 

1597.  Since  the  act  of  1855  railway  companies  are  liable  for  injuries 
to  cattle  that  may  stray  upon  their  track  through  the  want  of  the  re- 
quired fences.    Galena  &  Ch.  Union  R.  R.  v.  Crawford,  25  111.  529. 

1598.  Declaration  need  not  show  that  the  injury  did  not  occur  at  a 
farm  crossing.   If  the  road  is  not  properly  fenced  at  such  crossing,  the 
company  will  be  liable,  and  if  it  is,  that  is  a  matter  of  defense.    Great 
Western  R.  R.  v.  Helm,  27  111.  198. 

1599.  EVIDENCE.    Proof  of  the  killing  of  an  animal  by  a  railway 
company  upon  its  track  does  not  show  its  liability.    It  must  appear 
that  the  company  has  been  guilty  of  negligence,  or  that  the  case  comes 
within  the  statute  of  1855.    Great  Western  R.  R.  v.  Morthland,  30  111. 
451. 

1600.  EVIDENCE  OF  INSUFFICIENT  FENCE.    While  the  fact  that  a 
horse  was  killed  upon  a  railroad  track  does  not  of  itself  prove  negli- 
gence in  the  company,  yet  if  killed  at  a  point  where  it  was  its  duty  to 
fence  the  track,  this  is  a  circumstance  which  may  be  considered  in 
determining  the  question,  whether  the  fences  and  cattle-guards  were 
good  and  sufficient.    C.  &  A.  R.  R.  v.  Utley,  38  111.  410. 

1601.  INSUFFICIENCY— frightened  animal.    If  a  horse  takes  fright 
and  runs  away  and  gets  upon  a  railroad  at  a  point  required  to  be 
fenced,  and  is  killed  upon  the  track,  the  insufficiency  of  the  fence  or 
cattle-guard  at  that  point  will  alone  render  the  company  liable.    C.  & 
A.  R.  R.  v.  Utley,  38  111.  410. 

1602.  WHO  LIABLE  UNDER  STATUTE.     Where  a  railway  company 
by  contract  allows  another  company  to  run  trains  over  its  unf enced 
road,  by  one  of  which  trains  stock  are  injured  by  reason  of  the  omission 
to  fence,  both  companies  will  be  liable  to  the  owner  of  the  stock,  and 
he  may  sue  either  company.    /.  C.  R.  R.  v.  Kanouse,  39  111.  272. 

1603.  LIABILITY  WITHOUT  PROOF  OF  NEGLIGENCE.    Where  such 
company  fails  to  fence  its  track  as   required  by  law,  or  erects  an 
insufficient  one,  or  fails  to  maintain  a  good  and  sufficient  fence,  it  will 
be  liable  for  all  damages  resulting  from  such  omission  of  duty,  with- 
out reference  to  the  manner  in  which  its  engines  may  have  been  con- 
trolled.   St.  L.,A.  &  T.  H.  R.  R.  v.  Linder,  39  111.  433. 

1604.  WHERE  TWO  COMPANIES  LIABLE.    A  railway  company  al- 
lowing another  company  to  use  its  road  will  be  liable  for  injuries  done 
by  the  trains  of  the  latter  company,  to  stock  happening  from  the 
road  being  unfenced,  the  same  as  if  done  by  its  own  trains,  and  it 


AND  EMINENT  DOMAIN.  207 


seems  the  other  company  is  also  liable  therefor.    T.,  P.  &  W.  Ry,  v. 
Rumbold,4Q  111.  143. 

1605.  NEGLIGENCE  INFERRED.    Where  the  killing  of  stock  is  at- 
tributable to  a  defective  fence,  which  it  was  the  duty  of  the  company  to 
provide,  but  which  it  failed  to  do,  negligence  is  inferred;  but  if  it  has 
performed  this  duty,  then  negligence  must  be  proved  as  in  ordinary 
cases .     /.  G.  R.  R.  v.  Whalen,  42  111.  396. 

1606.  If  a  railway  company  neglects  to  fence  its  road,  and  an  in- 
jury to  an  animal  occurs,  which  is  fairly  attributable  to  such  neglect, 
the  mere  fact  that  the  animal  is  at  large  where  it  is  not  in  viola- 
lation  of  any  general  or  local  law,  will  not  relieve  the  company  of  its 
liability,  even  though  the  animal  may  go  upon  the  track  from  unin- 
closed  lots  adjacent  to  the  crossing,  and  is  not  standing  when  injured 
on  the  actual  intersection  of  the  railway  and  the  highway.    T.,  W. 
&  W.  Ry.  v.  Furgusson,  42  111.449. 

1607.  Where  cattle  are  injured  upon  a  railroad  at  a  place  where 
the  company  is  required  to  fence  its  road,  and  it  has  been  in  operation 
several  years  without  that  being  done,  the  company  will  be  liable  for 
the  damages  resulting  from  such  neglect  of  duty.    T.,  P.  &  W.  Ry.  v. 
Wickery,  44  111.  76. 

1608.  FAILURE  TO  KEEP  IN  REPAIR.    Where  the  company  suffers 
bars  at  a  farm  crossing  to  be  left  down  for  the  period  of  three  months, 
it  will  be  guiity  of  negligence,  and  liable  for  injury  to  stock  getting  on 
the  track  in  consequence  of  the  bars  being  down,  unless  they  are  left 
down  by  the  owner  of  the  stock.    /.  C.  R.  R.  v.  Arnold,  47  111.  173. 

1609.  Railway  companies  are  required  to  fence  their  roads  with 
fences  sufficient  to  turn  stock,  and  to  keep  the  same  in  repair.    They 
are  required  to  put  in  gates  at  farm  crossings,  which  are  a  part  of  the 
fence;  and  their  duty  to  keep  the  fences  in  repair,  includes  the  duty  of 
keeping  their  gates  safely  and  securely  closed,  so  as  to  afford  equal  pro- 
tection from  stock  getting  upon  their  road  at  such  places  as  at  other 
places.     Ch.  &  N.  W.  Ry.  v.  Harris,  54  111.  528. 

1610.  SUFFICIENCY  OF  GATES.    A  railway  company  is  not  required 
to  fasten  gates  to  fences  so  as  to  make  it  impossible  for  stock  to  open 
them  under  any  and  all  circumstances.     It  will  be  sufficient  if  it  uses 
the  fastening  commonly  adopted  by  persons  reasonably  prudent  and 
careful,  and  which  are  regarded  by  them  as  safe.    C.  &  A.  Ry.  v.  Suck, 
14  Bradw.  394. 

1611.  CATTLE-GUARDS.   The  requirement  to  build  cattle-guards  at 
road  crossings  is  not  different  from  that  to  build  fences  along  the 
track,  and  a  failure  to  build  such  cattle-guards  imposes  no  greater  or 
other  liability  than  a  failure  to  fence.     P.,  D.  &  E.  Ry.  v.  Schiller.  12 
Bradw.  443. 

1612.  ELECTION  OF  REMEDY.    Where  stock  is  killed  by  a  railway 
company  through  a  neglect  to  fence  its  road  within  the  time  required, 
the  owner  may,  at  his  election,  sue  under  the  statute,  or  upon  the 
common  law  ground  of  negligence,  or  both.    R.,  R.  I.  &  St.  L.  R.  R.  v. 
Phillips,  66111.  548. 

1613.  Where  the  plaintiff  proceeds  under  the  statute,  he  need  only 
prove  the  killing  of  his  cattle  by  the  defendant's  train  and  its  neglect 
to  fence.     He  is  not  required  to  show  anv  other  negligence.    R.,  R.  I 
&  St.  L.  R.  R.  v.  Lynch,  67  111.  149. 

1614.  Where  the  plaintiff  declares  .upon  the  statutory  liability  grow- 
ing out  of  a  neglect  to  fence  the  road  within  six  months  after  the 
same  is  opened  and  used,  no  recovery  can  be  had  unless  the  company 
was  bound  to  fence  its  road.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Lynch.  67 
111.  149. 


208  EAILEOADS,  WAREHOUSES, 

1615.  Where  a  railway  company  has  been  operating  trains  over  its 
road  for  more  than  six  months,  and  has  failed  to  fence  its  track,  and 
while  passing  through  plaintiff's  farm  with  its  train,  kills  the  plain- 
tiff's stock  upon  the  track,  the  company  will  be  liable  for  the  damages. 
T.,  P.  &  W.  Ry.  v.  Crane,  68  111.  355. 

1616.  NEGLIGENCE  PRESUMED.    The  design  of  this  section  was  to 
afford  some  protection  from  hazard,  of  trains  running  at  a  high  rate 
of  speed,  by  fencing;  and  if  this  is  omitted  by  a  railway  company,  it 
will  be  presumed  to  be  guilty  of  negligence,  without  any  other  proof 
than  that  of  the  omission  to  fence.    T.,  P.  &  W.  Ry.  v.  Pence,  68 
111.  524. 

1617.  Where  a  railway  company  kills  stock  upon  its  track  at  a  place 
not  a  public  crossing,  or  where  not  required  to  fence,  and  it  has  been 
in  operation  more  than  six  months  before  and  has  not  fenced  its  track 
at  such  place,  and  the  owner  of  the  land  has  not  agreed  to  fence  the 
road,  the  company  will  be  liable,  without  proof  of  any  actual  negli- 
gence, even  though  the  owner  may  not  prove  that  the  stock  got  upon 
the  track  at  the  point  not  fenced.    T.,  P.  &  W.  Ry.  v.  Pence,  68  111.  524. 

1618.  SUFFICIENCY  OF  FENCE.    Wliere  the  proof  shows  that  the 
company's  fence  at  the  place  where  a  person's  mare  got  upon  the  track 
and  was  killed,  was  not  sufficient  to  prevent  domestic  animals  from 
getting  upon  the  road,  the  company  will  be  liable.    C.  &  A.  R.  R.\. 
Umphenour,  69  111.  198. 

1619.  Railway  companies  are  responsible  to  the  owners  of  stock 
killed  by  their  trains  where  they  have  not  fenced  their  roads;  and  the 
party  injured  can  recover  without  proof  of  actual  negligence  in  run- 
ning their  trains.    T.,  P.  &  W.  Ry.  v.  Logan,  71  111.  191. 

1620.  Where  a  railway  company  fails  to  fence  its  track  as  required, 
it  must  see  that  its  servants  so  conduct  its  trains,  that  injury  shall  not 
result  to  stock  that  may  get  upon  its  track,  if  it  can  be  avoided  by  care 
and  caution.    In  failing  to  fence  it  takes  the  hazard,  and  where  injury 
results  therefrom,  it  must  be  required  to  respond  in  damages.    T.,  P. 
&  W.  Ry.  v.  Lattery,  71  111.  522. 

1621.  Where  a  mule  escapes  from  an  enclosure  without  the  fault 
of  the  owner,  and  gets  upon  a  railroad  track  at  a  point  not  fenced, 
but  where  it  is  the  duty  of  the  company  to  have  had  a  fence,  and  is 
injured  by  a  train,  the  company  will  be  liable.    T.,  P.  &  W.  Ry.  v.  Del- 
ehanty,  71  111.  615. 

1622.  Where  a  railway  company  fails  to  fence  its  track  as  required 
by  law,  it  is  sufficient  to  fix  its  liability,  if  the  plaintiff 's  stock  in  con- 
sequence thereof,  and  without  any  contributing  negligence  on  his 
part,  goes  upon  the  track  of  the  railroad,  where  it  is  killed  or  injured 
by  its  locomotive  or  train.    Swing  v.  C.  &  A.  R.  R.,  72  111.  25. 

1623.  In  a  suit  against  a  railway  company  to  recover  for  the  kill- 
ing of  the  plaintiff's  cow,  where  the  evidence  tended  to  show  that  the 
cow  got  upon  the  track  through  the  negligence  of  its  servants  in  fail- 
ing to  keep  a  gate  at  a  farm  crossing  in  repair,  it  was  held  that  a  ver- 
dict finding  the  company  liable  would  not  be  disturbed.    T.  W.  &  W. 
Ry.  v.  Nelson,  77  111.  160. 

1624.  A  railroad  ran  through  a  common  field  of  several  square 
miles,  owned  by  different  parties,  some  of  whom  resided  therein, 
which  was  fenced  only  on  the  outside.    The  road  had  been  in  opera 
tion  for  more  than  six  months,  and  the  company  had  not  fenced  its 
track  entirely  through  the  enclosure  :  Held,  that  the  company  was 
liable  for  stock  killed  by  its  trains  inside  of  the  inclosure .    P.,  P.  &  J. 
R.  R.  v.  Barton,  80  111.  72. 

1625.  A  railway  company  is  required  to  put  in  cattle-guards  at 


AND  EMINENT  DOMAIN.  209 

public  road  crossings  to  keep  cattle  from  getting  on  its  track.    P.,  P. 
&J.R.R.V.  Barton,  80  111.  72. 

1626.  Where  a  railroad  crosses  a  private  farm  crossing  inside  of 
an  inclosure,  it  is  its  duty  to  place  bars  or  gates  there,  and  it  will  be 
liable  for  stock  killed  through  its  failure  to  do  so .    76. 

1627.  Where  stock  is  killed  or  injured  by  reason  of  the  insufficiency 
of  the  fences  of  a  railway  "company  along  its  track,  and  the  fences 
have  been  out  of  repair  so  long  that  the  company  must  have  known 
it,  and  the  owner  of  the  stock  is  guilty  of  no  negligence,  the  company 
will  be  liable  for  the  injury.     O.  &  M.  Ry.  v.  Clutter,  82  111.  123. 

1628.  A  railway  company  which  fails  to  fence  its  track  as  re- 
quired by  law,  is  liable  for  any  damage  resulting  from  such  failure 
whether  caused  by  its  own  trains  or  those  of  another  company  using 
its  tracks.    E.  St.  L.  &  C.  Ry.  v.  Gerber,  82  111.  632. 

1629.  A  railway  company  will  be  liable  for  any  damage  done  by 
its  trains  resulting  from  a  failure  to  fence  the  track  on  which  the 
damage  is  done,  although  the  track  may  belong  to  another  company. 
E.  St.  L.  &  C.  Ry.  v.  Gerber,  82  111.  632. 

1629a.  The  words  "on  both  sides  of  its  road"  as  used  in  the  act, 
mean  the  margin  or  border  of  the  entire  ground  used  as  a  right  of 
way.  People  v.  O.  &  M,  Ry.,  21  App.  E.  21;  0.  &  M.Ry.  v.  People, 
121  111.  483. 

16296.  Mandamus  lies  to  compel  railway  company  to  fence  its 
right  of  way  on  the  margin  thereof.  0.  &  M.  Ry.  v.  People,  121  111. 
483. 

1630.  NEGLIGENCE  IN  KEEPING  GATES  CLOSED.    The  company  is 
not  required  to  patrol  the  line  of  its  road  to  see  that  the  gates  at  the 
farm  crossings  are  not  left  open;  nor  to  keep  a  guard  upon  the  road  to 
discover  and  counteract  such  carlessness  immediately  upon  its  occa- 
sion.   It  is  only  negligent  where  it  has  had  a  reasonable  time  to  dis- 
cover such  breach,  or  has  been  notified  and  failed  to  take  proper  action. 
C.,  B.&  Q.R.R.  v.  Slerer,  13  Bradw.  261. 

1631.  A  railway  company  is  not  required  to  keep  a  patrol  on  the 
line  of  its  road  to  see  that  the  gates  at  farm  crossings  are  kept  closed; 
but  if  its  employes  seeing  such  a  gate  open,  do  not  close  it,  when  not 
left  open  by  a  person  to  whom  an  injury  afterwards  results,  the  com- 
pany will  be  liable  for  such  injury.    /.  C.R.R.  v.  McKee,  43111,119. 

1632.  If  a  horse  gets  upon  a  railroad  track  through  an  open  gate 
in  the  fence  of  the  company,  where  it  is  killed,  the  company  will  not 
be  liable,  unless  the  gate  has  been  so  long  open,  as  to  raise  the  pre- 
sumption that  the  servants  of  the  company  knew  it,  or  to  charge  them 
with  negligence.    C.B.&Q.  R.R.  v.  Magee,  60  111.  529;  47  111.  206. 

1633.  Where  the  evidence  tends  to  show  that  a  horse  killed  upon  a 
railroad,  got  upon  the  track  through  an  open  gate  at  a  farm  crossing, 
it  is  error  to  instruct  the  jury,  that  if  the  road  was  not  so  fenced  as  to 
prevent  the  horse  from  getting  on  it  under  any  circumstances,  to  find 
for  the  plaintiff.    Ib. 

1634.  LEAVING  GATE  OPEN.     Where  it  appeared  that  two  horses 
got  upon  the  track  of  a  railway  company,  through  an  open  gate  at  a 
farm  crossing  where  they  were  killed  by  a  train,  the  company  having 
permitted  the  gate  to  remain  open  for  a  week  previous  to  the  accident: 
Held,  that  the  company  was  guilty  of  such  negligence  as  to  render  it 
liable.    The  fact  that  the  plaintiff's  horses  entered  the  close  of  another 
through  an  insufficient  [fence  upon  the  highway,  and  passed  from 
thence  upon  the  plaintiff's  road,  will  not  effect  his  right  to  recover. 
Ch.  &  N.  W.  Ry.  v.  Harris,  54  111.  528. 

1635.  NEGLIGENCE-^ -failure  to  discover  breaches,   &c.    Where  a 

—15 


210  KAILEOADS,  WAREHOUSES, 

sufficient  fence  has  been  made,  and  from  accident  or  wrong  over  which 
the  company  has  no  control,  it  becomes  insufficient  to  turn  stock,  it 
will  have  a  reasonable  time  in  which  to  discover  and  repair  the  same. 
The  company  need  not  have  a  patrol  at  all  times,  night  and  day,  pass- 
ing along  the  road  to  see  the  condition  of  the  fence.  If  this  is  done 
daily,  and  the  company  when  informed  of  the  defect  at  once  makes 
the  necessary  repairs,  it  will  not  be  liable  for  an  injury  resulting  from 
the  temporary  insufficient  condition.  /.  G.  R.  R.  v.  Swearingen,  33  111. 
289. 

1636.  Where  an  employe  whose  duty  it  was  to  keep  fences  in  re- 
pair, passed  over  the  road  at  4  o'clock  P.  M.  on  Saturday  and  found 
the  fences  in  repair,  and  again  on  Monday  morning  passed  over  the 
road,  and  found  the  fence  had  recently  been  broken,  and  that  through 
such  breach  stock  got  upon  the  track  and  was  injured:  Held,  that  the 
company  had  used  reasonable  diligence  in  keeping  the  fence  in  repair. 
/.  C.  R.  R.  v.  Swearingen,  47  111.  206. 

1637.  TIME  TO  MAKE  REPAIRS.    Where  a  casual  breach  occurs  in 
the  fence  without  the  knowledge  or  fault  of  the  company,  through 
which  stock  get  upon  the  track  and  are  injured,  the  company  will  not 
be  liable  unless  it  has  had  a  reasonable  time  in  which  to  discover  such 
breach,  or  has  been  notified,  and  failed  to  repair  before  the  injury.   Ib. 

1638.  DILIGENCE  TO  DISCOVER  BREACH  IN  OR  DEFECTS.    While 
railway  companies  are  not  required  to  keep  a  guard  on  their  roads  to 
discover  a  breach  in  their  fence  as  soon  as  it  occurs,  and  repair  it  at 
once,  still  the  law  requires  them  to  keep  such  a  force  as  may  discover 
breaches  and  openings  in  their  fences  and  close  them  in  a  reasonable 
time .     To  neglect  repairing  for  a  week  or  more,  is  a  neglect  of  duty 
that  will  ordinarily  render  them  liable  for  an  injury  ensuing  there- 
from.   Ch.,  &  N.  W.  Ry.  v.  Harris,  54  111.  528. 

1689.  While  railway  companies  will  be  held  to  a  high  degree  of 
diligence  in  keeping  their  fences  in  good  repair,  they  are  not  required 
to  do  impossible  things,  nor  are  they  required  to  keep  a  constant 
patrol,  night  and  day.  Ch.  &.  N.  W.  Ry.  v.  Sarrie,  55  111.  226. 

1640.  If  a  breach  occurs  in  the  fence  by  the  unlawful  act  of  a 
stranger  through  which  stock  get  upon  the  track  and  are  injured,  in 
the  absence  of  negligence  on  its  part,  the  company  will  not  be  liable, 
unless  the  accident  happened  after  the  lapse  of  sufficient  time  for  it, 
in  the  exercise  of  reasonable  diligence,  to  have  discovered  and  repaired 
the  breach.    Ib. 

1641.  A  railway  company  will  not  be  liable  for  the  temporary  in- 
sufficient condition  of  its  fence,  unless  it  has  notice  thereof,  and 
neglects,  thereafter  to  repair.    C.  &  A.  R.  R.\.  Umphenour,  69  111.  198. 

1642.  Where  a  railroad  is  inclosed  by  a  sufficient  fence,  and  a  casual 
breach  occurs  therein,  without  the  knowledge  or  faiilt  of  the  company, 
and  through  such  breach,  stock  get  upon  the  track  and  are  injured,  the 
company  is  not  liable  unless  it  has  had  a  reasonable  time  to  discover 
such  breach,  or  has  been  notified,  and  fails  to  repair  before  the  injury 
occurs.     /.  &  St.  L.  R.  R.  v.  Hall,  88  111.  368. 

1643.  Where  a  railway  company  is  required  to  keep  its  track 
fenced,  and  a  breach  is  made  in  the  fence  by  parties  not  in  the  employ 
or  under  the  control  of  the  company,  and  the  company  has  no  knowl- 
edge of  such  breach,  and  there  are  no  circumstances  showing  that  it 
was  authorized  to  anticipate  the  breach  being  made,  and  by  reason  of 
such  breach  stock  gets  upon  the  track  and  is  killed  before  the  company 
has  had  a  reasonable  time  to  discover  the  breach,  the  company  will 
not  be  liable;  and  a  covenant  or  condition  in  a  deed  conveying  the 
right  of  way,  to  fence  the  same,  will  not  add  to  the  defendant's'liability 
under  the  statute.    C.  &  A.  R.  R.  v.  Saunders,  85  111.  288. 


AND  EMINENT  DOMAIN.  211 

1644.  NOTICE  OF  DEFECTS.     Where  defects  in  its  fence  are  known 
to  the  company,  the  failure  of  the  adjoining  land-owner  to  use  reason- 
able efforts  to  notify  the  company  of  such  defects,  will  not  justify  it  in 
failing  to  repair  the  same.     C.,  B.  &  Q,  R.  R.  v .  Seirer,  60  111.  295. 

1645.  ESTOPPEL  TO  DENY  LIABILITY  TO  MAINTAIN.    A  railway 
company  which  erects  a  fence  and  gate  along  its  right  of  way,  a  few 
feet  beyond  the  same,  and  upon  the  land  of  the  adjoining  owner,  and 
keeps  the  same  in  repair  for  some  time,  and  then  suffers  it  to  get  out 
of  repair,  whereby  stock  escapes  through  the  same  and  is  killed  upon 
the  track,  cannot  escape  liability  to  the  owner  of  such  stock,  on  the 
ground  that  such  fence  and  gate  are  not  011  the  right  of  way,  when  it 
has  given  no  prior  notice  that  it  will  not  keep  up  such  repairs  any 
longer.    C.  &  E.  III.  Ry.  v.  Guertin,  115  111.  466. 

1646.  Where  a  railway  company  after  erecting  and  maintaining 
for  many  years  a  fence  along  the  side  of  and  near  its  right  of  way, 
near  a  station,  suffers  it  to  become  defective,  so  that  stock  gets  over  it 
and  upon  its  track  and  are  killed,  it  cannot  exonerate  itself  from  lia- 
bility on  the  ground  of  its  higher  duty  to  the  public  of  keeping  its 
depot  grounds  open.    So  long  as  it  permits  such  a  fence  to  stand  as  a 
fence  required  by  statute,  it  will  be  estopped  from  denying  its  duty  to 
keep  it  in  proper  repair.    Ib. 

1647.  WHERE   RAILWAY   NOT  IN  DEFAULT  AS  TO   FENCING— 
burden  of  proof.    Where  the  injury  is  not  the  result  of  a  neglect  to 
fence,  the  burden  of  proof  to  show  negligence,  rests  on  the  plaintiff. 
Ch.  &  N.  W.  Ry.  v.  Taylor,  8  Bradw.  108. 

1648.  If  a  horse  takes  fright  and  gets  upon  the  track  by  breaking  a 
fence  or  leaping  a  guard,  which  would  be  sufficient  uuder  all  ordinary 
circumstances,  it  will  not  devolve  upon  the  company  to  prove  an 
absence  of  negligence  in  running  its  trains,  and  it  will  not  be  liable, 
except  on  proof  of  its  carelessness  or  willful  injury.  C.  &  A.  R.  R.  v. 
Utley,  38  111.  410. 

1649.  To  make  a  railway  company  liable  for  killing  or  injuring 
stock,  except  for  neglect  to  fence,  the  plaintiff  must  show  that  the  in- 
jury resulted  from  a  want  of  ordinary  care  on  the  part  of  the  com- 
pany.   P.  D.  &  E.  R.  R.  v.  Dugan,  10  Bradw.  233. 

1650.  In  an  action  at  common  law  against  a  railway  company  for 
killing  cattle,  negligence  of  the  company  must  be  averred  and  proved. 
It  is  otherwise  if  the  action  is  brought  under  the  statute  for  neglect  to 
fence.    T.  H.,  A.  &  St.  L.  R.  R.  v.  Augustus,  21  111.  186. 

1651.  Where  stock  gets  upon  the  track  of  a  railway  company 
without  its  fault,  the  law  requires  evidence  beyond  the  mere  proof 
that  they  were  injured  or  killed  by  the  engine  or  cars  of  the  company, 
to  establish  its  liability.    It  is  necessary  to  show  negligence  on  the 
part  of  the  servants  of  the  company  having  charge  of  the  train  at  the 
time  the  injury  occurred.    Ch.  &  N.  W.  Ry.  v.  JBarrie,  55  111.  226. 

1652.  EVIDENCE   OF  NEGLIGENCE.    A  case  of  negligence  is  not 
made  out  by  simply  showing  the  killing  of  stock  upon  the  road  by 
the  agents  or  cars  of  the  company.    Ch.  &  Miss.  R.  R.  v.  Patchin,  16 
111.  198. 

1653.  The  mere  fact  of  killing  an  animal  by  a  railway  company, 
does  not  render  the  company  liable,  unless  it  has  been  guilty  of  negli- 
gence, or  the  case  comes  within  the  statute  of  1855.     Great   Western 
R.  R.  v.  Northland,  30  111.  451. 

FENCING  NOT  INVOLVED. 

1654.  LIABLE  ONLY  FOR  GROSS  NEGLIGENCE.    Railway  companies 
are  not  liable  for  injuries  to  cattle,  unless  they  be  willfully  or  malicious- 


212  KAILBOADS,  WAREHOUSES, 

ly  done,  or  done  under  circumstances  showing  gross  negligence.  They 
are  not  bound  to  use  the  highest  possible  degree  of  care  towards  ani- 
mals coming  upon  their  tracks.  Great  Western  R.  JR.  v.  Thompson, 
11  111.  131. 

1655.  A  railway  has  a  right  to  run  its  cars  upon  its  track  without 
obstruction,  and  an  animal  has  no  right  upon  the  track  without  the 
consent  of  the  company;  and  if  suffered  to  stray  there,  it  is  at  the 
risk  of  the  owner.    Central  Military  Tract  R.  R.  v.  Rockafellow,  17 
111.  541. 

1656.  Where  an  animal  is  allowed  to  stray  upon  the  track  of  a 
railroad  company,  the  company  will  not  be  liable  for  an  injury  to  it, 
except  gross  negligence  of  the  company  is  shown.     Ib. 

1657.  Animals  straying  upon  the  track  of  an  uninclosed  railroad, 
are  strictly  trespassers,  and  the  company  is  not  liable  for  their  de- 
struction, unless  its  servants  are  guilty  of  willful  negligence,  evincing 
reckless  misconduct.    /.  C.  R.  R.  v.  Reedy,  17  111.  580. 

1658.  While  a  train  was  running  through  a  town  upon  the  depot 
grounds  at  the  usual  rate  of  speed,  the  bell  being  rung,  a  colt  ran  upon 
the  track  from  behind  a  building  so  near  the  road  that  it  could  not  be 
seen  by  the  engineer  in  time  to  check  the  train,  but  as  soon  as  he  saw 
it  he  blew  the  whistle  and  the  brakes  were  put  down,  but  the  colt  was 
killed.    The  track  at  that  point  was  not  fenced.  Held,  that  the  com- 
pany being  guilty  of  no  negligence,  was  not  liable.    Galena  &  Ch. 
Union  R.  R.  v.  Griffin,  31  Ilk  303. 

1659.  If  an  animal  is  suddenly  driven  on  the  track  by  a  dog  and 
is  killed  without  there  being  any  fault  on  the  part  of  the  engineer, 
the  company  will  not  be  liable.    /.  C.  R.  R.  v.  Wren,  43  111.  77. 

1660.  Gross  or  willful  negligence  on  the  part  of  a  railway  com- 
pany will  make  it  liable  for  an  injury  to  an  animal,  even  though  the 
animal  be  improperly  on  the  track.    1.  C .  R.  R.v.  Wren,  43  111.  77. 

1661.  IF   INJURY   COULD  HAVE  BEEN  PREVENTED  BY  ORDINARY 

CARE  —  liable.  If  by  the  use  of  ordinary  care  and  diligence,  animals 
on  a  railroad  track  can  be  saved  from  injury,  it  is  the  duty  of  the 
company  to  employ  that  degree  of  care.  No  other  rule  will  afford 
sufficient  protection  to  animals  which  are  lawfully  on  the  track,  as 
they  are,  if  they  get  upon  it  from  the  range  or  commons.  /.  C.  R.  R. 
v.  Baker,  47  111.  295. 

1662.  Where  stock  are  upon  the  track  and  a  train  is  approaching, 
though  down  a  slight  grade,  and  the  engine-driver,  instead  of  stopping 
his  train  to  drive  off  the  stock,  pursues  them  to  a  point  where  by  means 
of  ditches  filled  with  water  on  each  side  of  a  high  embankment,  there 
is  but  little  probability  the  animals  will  leave  the  track,  and  they  are 
overtaken  and  killed,  the  company  is  guilty  of  gross  negligence,  and 
will  be  liable,  even  if  it  appears  that  the  animals  got  upon  the  track 
within  the  limits  of  a  town.    /.  C.  R.  R.  v.  Baker,  47  111.  295. 

1663.  Where  the  engineer  saw  a  lot  of  mules  on  the  track  and 
sounded  the  whistle  to  frighten  them  off,  but  they  ran  along  the  track 
into  a  cut,  where  they  were  killed,  and  it  appearing  that  he  might  have 
stopped  the  train:     Held,  culpable  negligence  on  the  part  of  the 
engineer  for  which  the  company  was  liable.    /.  C.  R.  R.  v.  Middles- 
worth,  46  111.  494. 

1664.  Where  cattle  killed  upon  the  track  could  have  been  seen  by 
the  engineer  in  charge  of  the  train  for  a  distance  of  more  than  half  a 
mile,  and  there  was  nothing  to  obstruct  his  view,  and  without  any 
effort  to  stop  the  train  or  giving  any  signals  of  alarm,  rushed  upon 
them  at  a  rapid  rate:    Held,  such  gross  negligence  as  to  authorize  a 


AND  EMINENT  DOMAIN.  213 

recovery,  even  though  the  cattle  were  upon  the  track  without  the 
fault  of  the  company.    Ch.  &  N.  W.  Ry.  v.  Barrie,  55  111.  226. 

1665.  Where  stock  is  killed  on  a  railroad  track,  and  the  engineer  in 
charge  of  the  train,  could  by  the  use  of  ordinary  care  and  skill,  without 
danger,  have  stopped  the  train  in  time  to  have  avoided  the  collision, 
although  the  animals  were  wrongfully  upon  the  track,  the  company 
will  be  liable.    T.,  P.  &  W.  Ry.  v.  Bray,  57  111.  514. 

1666.  Where  a  cow  is  killed  by  an  engine  at  a  place  where  the  com- 
pany is  not  bound  to  fence  its  track,  there  being  no  wanton  or  willful 
neglect  of  the  company,  yet  if  by  the  exercise  of  ordinary  care  and 
skill  upon  its  part,  the  injury  could  have  been  prevented,  the  company 
will  be  liable.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Lewis,  58  111.  49. 

1667.  Where  by  the  use  of  ordinary  care  and  diligence  on  the  part 
of  the  servants  of  a  railway  company,  animals  straying  on  its  track 
can  be  saved  from  injury,  it  is  their  duty  to  exercise  such  care,  and  a 
failure  to  do  so,  will  make  the  company  liable.    T.,  P.  &  W.Ry.v. 
Ingraham,  58  111.  120. 

1668.  If  an  engineer  sees  cattle  on  the  track  and  can  by  ordinary 
care,  caution  and  diligence,  avoid  injury  to  them,  he  should  do  so,  and 
failing  to  do  so,  the  company  will  be  liable  to  the  owner,  even  though 
he  was  negligent  in  allowing  the  cattle  to  get  on  the  track.    C.,  M.  & 
St.  P.  R.  R.  v.  Phillips,  14  Bradw.  265. 

1669.  BURDEN  OF  PROOF.    Where  the  company  has  erected  and 
maintains  sufficient  fences  and  cattle-guards,  the  onus  is  in  the  owner 
of  the  cattle  to  show  a  negligent  or  willful  act  by  the  company  or  its 
servants,  before  he  can  recover  for  an  injury  thereto.    Galena  &  Ch. 
Union  R.  R.  v.  Crawford,  25  111.  529. 

1670.  Where  a  company  is  not  bound  to  fence  its  road,  it  is  only 
liable  for  injury  to  animals  resulting  from  wantonness  or  gross  neg- 
ligence.   /.  C.R.R.  v.  P helps,  29  111  447. 

1671.  A  railway  company  is  liable  for  injuries  to  persons  and 
property  where  willfully  done,  or  resulting  from  gross  neglect  of  duty. 
To  free  such  company  from  liability  for  injury,  it  must  discharge 
every  duty  imposed  by  law.    It  must  use  all  reasonable  means  to  pre- 
vent injury,  and  an  omission  to  do  so,  will  create  liability,  unless  the 
injured  party  by  his  negligence,  has  contributed  in  some  degree  to  the 
injury.    Great  'Western  R.  R.  v.  Geddis,  33  111.  304. 

1672.  Where  cattle  get  upon  a  track  at  a  point  where  the  company 
is  not  bound  to  fence,  or. where  others  are  bound  to  fence,  and  stray 
along  the  track  and  are  killed  by  a  train  at  a  place  where  the  company 
is  bound  to  fence,  but  has  failed  to  do  so,  the  company  will  not  be 
liable,  since  the  inj  ury  in  such  case  will  have  no  connection  with  the 
failure  to  fence  the  road  at  the  place  where  the  animals  were  killed. 
St.  L.,  A.  &  T.  H.  R.  R.  v.  Linder,  39  111.  433. 

1673 .  Where  stock  gets  upon  the  track  at  a  place  where  others  than 
the  company  are  bound  to  erect  and  maintain  the  fence,  and  is  killed 
at  that  place  or  another  place,  the  company  will  be  liable  only  in  case 
of  gross  negligence.     Ib. 

1674.  Where  the  company  has  performed  its  duty  in  respect  to 
fencing  its  road,  to  render  it  liable  for  stock  killed,  negligence  must 
be  proved  as  in  ordinary  cases.    /.  C.  R.R.  v.  Whalen,  42  111.  396. 

1675.  A  railway  company  is  liable  for  gross  negligence  resulting 
in  the  destruction  of  property,  irrespective  of  the  question  of  the  erec- 
tion of  fences.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Phillips,  66  111.  548. 

1676.  Where  stock  is  killed  by  an  engine  of  a  railway  company  on 
its  track  within  six  months  after  it  being  opened  for  use,  it  is  incum- 
bent on  the  owner  of  the  stock  to  show  negligence  on  the  part  of  the 


214  EAILEOADS,  WABEHOUSES, 

company,  to  entitle  him  to  recover.  R.,  R.  I.  &  St.  L.  R.  R.  v.  Connell, 
67  111.  216. 

1677.  Where  the  evidence  showed  the  entire  sufficiency  of  the 
fences  and  that  the  plaintiff's  horse  was  killed  at  the  crossing  of  a 
public  road,  where  the  company  had  constructed  and  maintained 
suitable  cattle-guards,  and  that  he  got  upon  the  track  from  the  road: 
Held,  that  the  company  could  not  be  held  liable,  except  upon   the 
ground  that  the  killing  was  willful,  or  the  result  of  negligence.    C.  & 
A.  R.  R.  v.  McMorrow,  67  111.  218. 

1678.  While  railway  companies  are  not  required,  or  permitted  to 
fence  their  tracks  in  incorporated  towns,  &c.,  still  they  are  bound  to 
use  all  due  and  proper  diligence  to  avoid  injury  to  property,  and 
they  must  exercise  such  diligence  as  to  stock  wrongfully  running  at 
large,  or  trespassing  on  their  track  or  right  of  way.    T.,  W.  &  W.  Ry. 
v.  McOinnis,  71  111.  346. 

1679.  Where  a  team  ran  away  and  got  upon  a  railroad  track  in  an 
incorporated  town  where  the  company  was  not  required  to  fence  its 
track,  and  ran  along  the  track,  until  they  fell  into  an  old  cattle-guard, 
where  they  were  injured  by  a  freight  train,  the  engineer  having  done 
all  he  could  to  stop  the  train:    Held,  that  the  company  was  not 
liable.    C.  &  A.  R.  R.  v.  Rice,  71  111.  567. 

1680.  Where  stock  is  killed  by  a  railroad  company  at  a   place 
where  it  is  not  required  to  fence  its  road,  the  party  seeking  a  recov- 
ery must  prove  that  the  killing  was  caused  through  the  negligence  of 
the  company; 'and  where  the  proof  shows  that  the  stock  was  killed 
within  the  limits  of  a  city,  and  there  is  no  evidence  of  negligence  on 
the  part  of  the  company,  no  recovery  can  be  had.    /.  C.  R.  R.  v.  Bull, 
72  111,  537. 

1681.  An  instruction  holding  a  railway  company  liable  for  the 
failure  of  its  servants  in  charge  of  a  train  to  use  ordinary  care  to  pre- 
vent the  killing  of  hogs,  is  erroneous,  if  it  excludes  the  necessary  ele- 
ment that  the  injury  might  have  been  avoided  by  such  care,  and 
makes  the  liability  depend  upon  a  failure  to  attempt  to  prevent  the 
injury,  whether  it; could  have  availed  or  not.    &.,  C.  &  S.R.  R.  v. 
Spencer,  76  111.  192. 

1682.  Where  a  railway  company  is  under  no  statutory  liability  for 
injury  to  stock  by  its  trains,  by  reason  of  its  road  not  having  been 
fenced,  as  where  the  road  has  not  been  open  for  six  months,  the  only 
ground  of  liability  will  be  that  the  injury  might  have  been  avoided 
by  the  exercise  of  ordinary  care  and  prudence,  and  that  its  servants  in 
charge,  failed  to  exercise  such  care  and  prudence.    &.,  C.  &  S.  R.  R.  v. 
Spencer,  76  111.  192. 

1683.  Where  stock  are  killed  or  injured  within  a  city,  town,  or  vil- 
lage, there  can  be  no  recovery  hadjby  the  owner,  without  an  averment 
in  the  declaration  and  proof,  that  the  servants  of  the  company  were 
guilty  of  negligence  in  running  its  trains  through  such  city,  town  or 
village.    P.,  P.&J.R.R.  v.  Barton,  80  111.  72. 

1684.  TRESPASSING  ANIMALS.    Where  a  domestic  animal  running 
at  large  by  the  sufferance  of  the  owner,  gets  upon  a  railroad  track  at 
the  crossing  of  a  highway,  where  the  company  is  not  required  to 
fence,  and  is  injured  by  a  passing  train,  the  company  will  not,  in 
general,  be  liable,  unless  its  servants,  after  they  discover  the  animal, 
might  by  the  exercise  of  proper  care  and  prudence,  have  prevented 
the  injury.    T.,  W.  &  W.  Ry  v  Barlow,  71  111.  640. 

1685.  In  such  a  case  it  is  not  suffii  ient  to  entitle  the  owner  to  re- 
cover, to  show  that  the  train  was  running  at  an  unusual  rate  of  speed, 
or  without  proper  care  in  other  respects.    Ib. 


AND  EMINENT  DOMAIN.  215 

1686.  Prior  decisions  made  under  the  law  making  it  lawful  for 
cattle  to  run  at  large,  do  not  fully  apply  under  the  present  law,  where 
no  neglect  in  fencing  is  involved.    76. 

1687.  WHAT  is  NEGLIGENCE.    It  is  negligence  on  the  part  of  a 
railway  company  to  permit  grass  or  weeds  to  grow  on  its  grounds  so 
as  to  obstruct  the  view  of  stock  by  the  engineer.    O.  &  M.  R.  R.  v. 
Clutter,  82  111.  123. 

1688.  FAILURE  TO  STOP  TRAIN.    The  law  imposes  no  obligation 
upon  those  in  charge  of  a  train  to  stop  the  same  upon  discovering  an 
animal  grazing  near  the  track,  in  anticipation  that  it  may  get  upon 
the  track  and  be  injured,  and  a  failure  to  do  so,  is  not  negligence.    P., 
P.  &J.R.  R.  v.  Champ,  75  111.  577. 

1689.  ICE  AND  WATER  IN  DITCHES.    The  law  does  not  require  a 
railway  company  to  keep  the  excavations  along  the  sides  of  its  track 
free  from  water  and  ice,  and  it  will  not  be  liable  for  stock  killed  in 
consequence  of  ice  therein  so  as  to  prevent  escape  from  the  track  over 
the  same.    P.  &  R.  I.  Ry.  v.  McClenahan,  74  111.  435. 

PLEADING. 

1690.  DECLARATION.    In  an  action  under  the  statute  for  injury 
to  animals,  the  plaintiff  should  aver  in  his  declaration  that  the  ani- 
mals were  not  within  the  limits  of  a  village,  &c.    C.,  B.  &  O.  R.  R.  v. 
Carter,  20  111.  390. 

1691.  Gross  negligence  need  not  be  averred,  the  degree  of  negli- 
gence being  a  matter  of  proof.    C.,  B.  &  Q.  R.  R.  v.  Carter,  20  111.  390. 

1692.  Unless  action  is  brought  under  the  statute  an  averment  of  a 
neglect  to  fence  may  be  treated  as  surplusage.    Ib. 

1693.  UNDER  STATUTE.    Tne  declaration  must  show  not  only  that 
the  company  was  required  to  fence  its  track  and  had  failed  to  do  so, 
but  must  also  negative  the  exceptions  in  the  act,  and  aver  that  the 
animals  were  not  injured  at  a  point  on  the  road  within  these  excep- 
tions, and  also  that  the  road  has  been  in  use  six  months  prior  to  the 
accident.     Galena  &  Ch.  Union  R.  R.  v.  ISumner,  24  111.  631. 

1694.  The  declaration  must  show  that  the  accident  did  not  happen 
at  a  place  where  the  company  is  not  bound  to  maintain  a  fence.    /. 
C.  R.  R.  v.  Williams,  27  111.  48. 

1695.  It  need  not  negative  the  possibility  that  the  animals  may 
have  been  killed  at  a  farm  crossing.    Great  Western  R.  R.  v.  Helm 
27  111.  198. 

1696.  In  suit  before  a  justice  of  the  peace  the  plaintiff  should  neg- 
ative by  proof  that  there  was  no  public  crossing  where  the  killing 
occurred,  and  show  that  the  company  was  bound  to  fence  at  that 
point.    O.  &  M.  R.  R.  v.  Taylor,  27  111.  207. 

1697.  The  declaration  must  negative  all  the  exceptions  in  the 
statute.    Great  Western  R.  R.  v.  Bacon,  30  111.  347. 

1698.  A  declaration  averred:  "nevertheless,  more  than  six  months 
after  said  railroad  was  in  use,  to- wit,  on  &c.,  the  said  defendant  neg- 
lected to  erect,"  &c. :  Held,  a  sufficient  averment  of  a  breach  of  the 
statutory  duty.    Great  Western  R.  R.  v.  Hanks,  36  111.  281. 

1699.  An  averment  that  the  steer  which  was  killed  "strayed  and 
got  on  such  railroad  without  the  limits  of  towns,  cities  and  villages, 
and  not  at  the  road  crossings  or  public  highways,"  is  sufficient.    Ib. 

1700.  It  is  sufficient  if  the  declaration  negatives  the  killing  in  the 
excepted  places  named  in  the  statute.    76. 

1701.  The  want  of  an  averment  that  a  fence  was  necessary  at  the 


216  BAILROADS,  WAEEHOUSES, 

place.ot'  the  accident  is  cured  by  the  proof  on  the  trial  after  verdict 
for  the  plaintiff.     T.,  P.  &  W.  Ry.  v.  McClannon,  41  111  238. 

1702.  Neglect  to  maintain  a  fence  whereby(stock  is  injured,  is  a 
ground  of  action  distinct  from  that  of  negligence  in  leaving  open  a 
gate  along  the  line  of  the  fence;  aud  where  an  action  is  predicated  on 
the  latter  ground,  it  must  be  so  averred  in  the  declaration.     I.  C .  R. 
It.  vMcKee,  43111.119. 

1703.  The  declaration  in  every  case  must  contain  a  full  and  explicit 
statement  of  all  the  material  facts  upon  which  a  recovery  is  sought,  so 
that  the  defendant  may  be  prepared  to  meet  them.    Ib. 

1704.  A  defect  in  a  declaration  in  failing  to  show  which  of  two 
animals  was  killed,  and  which  crippled,   is  cured  by  a  subsequent 
averment,  that  by  the  act  of  the  defendant  in  running  its  trains  upon 
them,  they  were  lost  to  the  plaintiff.  T.,  W.  &  W.  Ry.  v.  Cole,  50  111.  184. 

1705.  It  is  not  enough  to  aver  that  the  road  was  not  fenced  at  the 
place  where  the  injury  occurred;  but  it  should  be  shown  that  the  road 
was  not  fenced  at  the  place  where  the  animal  got  upon  the  track.    It 
should  be  shown  that  the  stock  did  not  get  upon  the  track  at  some 
other  place  where  the  road  was  fenced.    T.,P.  &  W.  Ry.  v.  Darst, 
51  111.  365. 

1706.  An  averment  that  the  road  has  been  opened  for  six  months, 
is  not  sufficient,  if  such  averment  relates  only  to  the  place  where  the 
injury  occurred,  it  not  being  shown  but  that  the  stock  strayed  upon 
the  track  at  another  place,  where  the  road  had  not  been  opened  for 
six  months  before  the  injury. ,  Ib. 

1707.  A  declaration  averring  that  a  company  had  failed  to  fence 
the  road  at  the  place  where  the  animal  was  killed,  or  where  it  got  upon 
the  track,  and  that  it  was  not  killed,  nor  did  it  get  upon  the  track  at 
any  of  the  excepted  places,  is  sufficient,"  at  least  after  verdict,  or  on  mo- 
tion in  arrest,  to  show  that  the  injury  resulted  from  the  neglect  to 
fence.    T., P.  &  W.  Ry.\.  Darst,  52  111.89. 

1708.  The  declaration  should  show  that  the  road  is  located  at  some 
place  in  this  state,  or  it  will  be  obnoxious  to  a  special  demurrer.   T.,  P. 
&  W.  Ry.  \.  Bookless,^  111.  230. 

1709.  In  a  suit  brought,  Oct.  30, 1868,  under  the  statute,  the  declar- 
ation averred,  "  that  the  defendant  on  the  first  day  of  January,  1867, 
and  from  thence  forward,  to  the  commencement  of  this  suit,  were 
possessed  of  and  had  the  entire  control  of  the  "road,  and  had  the 
right  to  run  upon  the  same,  locomotives,  and  trains;"  "and  that  the 
defendant  more  than  six  months  after  the  said  railroad  was  in  use, 
and  continuously  to  the  time  of  the  committing  of  the  grievances, 
&c.,  neglected  to  comply  with  the  before  mentioned  requirements  as 
by  the  statute  in  such  case  made  and  provided,  it  was  their  duty  to 
dp:"    Held,  on  special  demurrer,  that  it  was  not  alleged  with  suffi- 
cient certainty,  that  the  company  for  the  period  of  six  months  after 
the  road  was  "  opened  for  use,"  had  failed  to  erect  proper  fences.    T., 
P.  &  W,  Ry.  ^.  Bookless,  55  111.  230. 

1710.  An  objection  to  a  declaration  that  it  fails  to  aver  that  the 
railroad  ot  the  defendant,  used  by  it,  is  in  the  county  and  state  in 
which  the  action  is  brought,  conies  too  late  after  verdict.    T.,  P  .&  W. 
Ry.  v.  Webster,  55  111.  338. 

1711.  Where  a  count  averred  a  neglect  of  the  company  to  fence  its 
road,  and  that  a  train  was  run,  conducted  and  directed  carelessly, 
whereby  plaintiff's  horse  was  killed:    Held,  that  the  plaintiff  might 
recover  on  proving  either  ground;  but  that  it  was  subject  to  demurrer 
for  duplicity.    The  general  issue  is  a  traverse  of  both  grounds.    C.,  B. 
&  Q.  R.  It.  v.  Mayte,  60  111.  529. 


AND  EMINENT  DOMAIN.  217 

1712.  A  declaration  held  not  obnoxious  to  a  demurrer  for  want  of 
an  allegation  of  time  and  place,  when  and  where  the  injury  was  com- 
mitted.   St.  L.,  J.  &  C.  R.  R.  v.  Kilpatrick,  61  111.  457. 

1713.  To  recover  under  the  statute,  the  declaration  must  state  facts 
which  bring  the  case  substantially  within  the  statute,  and  the  plaintiff 
is  not  bound  to  show  that  there  was  negligence  in  the  management  of 
the  locomotive  or  train,  which  was  the  immediate  cause  of  the  injury. 
R.,  R.  I.  &  St.  L.  R.  R.  v.  Phillips,  66  111.  548. 

1714.  COMMON  LAW.    A  declaration  charging  that  the  defendant 
was  the  owner  of  the  railroad  and  operating  the  same  by  running 
locomotives  and  trains  thereon;  that  plaintiff's  horse  strayed  and  got 
upon  defendant's  road,  and  that  defendant  by  its  servants,  so  care- 
lessly, negligently  and  improperly  run,  conducted  and  directed  the 
locomotive  and  train  of  defendant  as  that  said  locomotive  struck 
plaintiff's  horse  with  great  force  and  killed  it,  shows  a  good  cause  of 
action  at  common  law.    R.,  R.  I.  &  St.  L.R.R.  v.  Phillips,  66  111.  548. 

1715.  In  pleading,  the  averment  of  negligence  is  sufficient  to  ad- 
mit proof  of  gross  negligence;  and  on  demurrer,  an  averment  of 
negligence  is  equivalent  to  whatever  degree  of  negligence  is  necessary 
to  sustain  the  pleading.  R.  R.,  I.  &  St.  L.  R.  R.  v.  Phillips,  66  111.  548. 

1716.  Where  the  declaration  charges  negligence  as  at  common  law, 
all  allegations  respecting  the  want  of  sufficient  fences  may  be  rejected 
as  surplusage.    /&. 

1717.  To  recover  for  an  injury  to  stock  within  a  city,  &c.,  the  decla- 
ration must  aver  that  the  servants  of  the  company  were  guilty  of 
negligence  in  running  its  train  through  such  city,  town  or  village. 
P.,  P.  &  J.  R.  R.  v.  Barton,  80  111,  72. 

1718.  Where  the  value  of  the  stock  killed  is  laid  under  a  mdelicit 
at  $200,  an  averment  that  the  cattle  were  of  the  value  of  $19.50  each, 
may  be  regarded  as  surplusage.    O.  &  M.  R.  R.  v.  Clutter,  82  111.  123. 

DEFENSES. 

1719.  DEFENSE — cost  of  fencing  paid  in  compensation  for  right 
of  way.    A  railway  company  when  sued  for  injury  to  animals,  may 
show  in  defense,  the  proceedings  to  condemn  the  right  of  way,  in  which 
the  cost  of  fencing  the  road  is  included  in  the  damages,  and  their  pay- 
ment to  the  plaintiff.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Lynch,  67  111.  149. 

1720.  Where  damages  are  assessed  against  a  railway  company  for 
fencing  the  road  in  a  proceeding  to  condemn,  and  the  proceedings  are 
formal  and  made  a  matter  of  record,  then  the  land  will  thereafter  be 
charged  with  the  duty  to  fence,  and  the  company  and  its  successor 
discharged  from  that  duty.    Ib. 

1721.  In  a  suit  to  recover  for  the  killing  of  stock  on  the  ground  of 
a  neglect  to  fence,  if  the  land-owner  has  agreed  to  fence  the  track,  or 
has  received  compensation  in  damages  for  so  doing,  the  burden  is  on 
the  company  to  show  that  fact,  and  not  upon  the  plaintiff  to  negative 
it.    T.,  P.  &  W.  Ry.  v.  Pence,  68  111.  524. 

1722.  If  the  owner  of  the  land  where  the  animals  got  upon  the 
track,  received  compensation  for  fencing  when  the  right  of  way  was 
obtained,  the  burden  of  proof  is  upon  the  company  to  show  that  fact. 
T.,  P.  &  W.  Ry.  v.  Pence,  71  111.  174;  T.,  P.  &  W.  Ry.  v.  Lavery, 
71  111  522. 

1723.  The  duty  imposed  by  the  act  of  1855  upon  railway  companies 
to  maintain  fences  along  their  roads,  is  not  transferred  to  the  owner 
of  the  land  over  which  the  road  may  run,  by  the  simple  employment  of 
such  owner  as  its  agent  and  servant,  and  his  performance  of  the  con- 


218  BAILBOADS,  WAREHOUSES, 

tract,  to  erect  the  required  fence  along  the  road  located  over  his  land. 
I.C.  R.  R.  v.  Swearingen,  33  111.  289. 

1724.  The  statute  only  contemplates  the  release  of  the  company 
where  the  duty  is  assumed  by  the  land-owner.    Ib. 

1725.  Where  the  owner  of  land  adjoining  the  right  of  way  of  a  rail- 
way company,  under  an  agreement  with  the  company,  erected  a  fence 
along  the  line  between  his  land  and  the  right  of  way,  and  took  upon 
himself  to  maintain  it,  it  was  held  as  between  such  owner  and  those 
holding  under  him,  with  knowledge  of  his  duty,  and  the  company,  that 
the  duty  of  maintaining  and  repairing  the  fence  did  not  rest  on  the 
company.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Washburn,  97  111.  253. 

1726.  A  tenant  of  such  land-owner  having  knowledge  of  the  under- 
taking of  his  landlord,  will  not  be  allowed  to  allege  any  want  of  suffi- 
ciency in  the  fence  as  a  ground  of  recovery  for  stock  getting  through 
the  same  and  being  killed.    76. 

1727.  BURDEN  OF  PROOF.    The  burden  of  proof  is  not  upon  the 
plaintiff  to  prove  the  averment  that  there  was  no  contract  between  the 
company  and  the  owner  of  the  ground,  that  the  latter  should  build  the 
fence  where  the  accident  occurred.    Great  Western  R.  R.  v.  Bacon,  30 
111.  347. 

CONTRIBUTORY  NEGLIGENCE. 

1728.  CONTRIBUTORY  NEGLIGENCE  —  leaving  gate  open.    If  the 
land-owner  opens  a  gate  at  a  farm  crossing  and  negligently  leaves  it 
open,  so  that  his  stock  get  upon  the  track  and  are  injured,  his  own 
act  and  neglect  will  defeat  any  recovery  by  him  for  such  injury.    /. 
C.  R.  R.  v.  McKee,  43  111.  119. 

1729.  If  bars  at  a  farm  crossing  are  taken  down  by  the  owner  or 
occupant  of  the  farm,  and  he  neglects  to  put  them  up,  his  own  act 
will  preclude  him  from  a  recovery  in  a  suit  by  him  against  the  com- 
pany for  animals  injured.    /.  C.  R.  R.  v.  Arnold,  47  111.  173. 

1730.  Where  a  person  repairs  a  break  in  the  fence  with  defective 
materials,  so  that  it  appears  sufficient  when  it  is  not  so  in  fact,  the 
company  will  not  be  liable  to  him  for  an  injury  to  his  animals  break- 
ing through  such  part  of  the  fence  without  notice  of  its  defective 
condition.    C.,  B.  &  Q.  R.  R.  v.  Seirer,  60  111.  295. 

1731.  Where  cattle  break  through  a  railroad  fence  and  the  owner 
of  the  cattle  repairs  it  with  defective  material  in  a  temporary  man- 
ner, but  it  is  apparently  sufficient,  and  his  cattle  again  break  through 
the  same  place  and  are  killed,  and  it  appears  that  he  knew  the  fence 
thus  repaired,  was  defective  and  that  he  failed  to  notify  the  com- 
pany :  field,  that  he  was  guilty  of  negligence  and  could  not  recover 
for  his  cattle.    76. 

1732.  The  owner  of  land  adjoining  a  railroad  has  no  right  to  re- 
main inactive  and  let  his  cattle  get  upon  the  track,  through  the  known 
deficiency  of  the  fence  along  the  road.    When  he  undertakes  to  repair 
such  fence  and  does  it  negligently  and  fails  to  notify  the  company,  he 
will  become  liable  for  the  natural  consequences  of  his  negligence.  1  b. 

1733.  If  by  ordinary  care,  caution  and  diligence,  injury  to  cattle  on 
the  track  may  be  avoided,  the  company  will  be  liable  to  the  owner  for 
an  injury  to  them,  even  though  he  may  be  negligent  in  allowing  them 
to  get  on  the  track.    C.,  M.  &  St.  P.  R.  R.  v.  Phillips,  14  Bradw.  265. 

1734.  An  animal  has  no  right  upon  a  railway  track,  and  if  suffered 
to  go  there  it  will  be  at  the  owner's  risk.    If  allowed  to  stray  upon  the 
track  the  company  will  not  be  liable  for  an  injury  to  it,  except  gross 
negligence  of  the  company  is  shown.    C.,  M.  Tract  R.  R.  v.  Rocka- 
fellow,  17  111.  541. 


AND  EMINENT  DOMAIN.  219 

1 735.  A  person  is  guilty  of  negligence  who  permits  his  animals 
to  go  upon  a  railroad  track  at  a  place  where  the  company  is  not  bound 
by  law  to  fence.    /.  C.R.R.v.  Phelps,  29  111.  447. 

1 736.  If  negligence  on  the  part  of  the  plaintiff  is  clearly  proven 
then  the  defendant  will  be  responsible  only  for  such  negligence  which 
implies  willful  injury.    /.  C.  R.  R.  v.  Goodwin,  30  111.  117. 

1737.  The  failure  of  a  railway  company  to  fence  its  track  is  negli- 
gence.   It  is  also  negligence  in  the  owner  of  horses  to  put  them  in  a 
field  through  which  an  unfenced  railroad  passes,  having  on  blind 
bridles.    He  has  the  right  to  turn  them  into  the  field,  but  not  so 
blinded  as  to  render  them  incapable  of  avoiding  danger.    St.  L.,  A.  & 
T.  H.  R.  R.  v.  Todd,  36  111.  409. 

1 738.  Where  the  owner  of  horses  is  guilty  of  negligence  in  putting 
them,  blindfolded,  into  a  field  through  which  passed  an  unfenced  rail- 
road, whereby  they  are  injured,  the  company  wijl  only  be  liable  for 
negligence  which  implies  willful  injury.    But  a  failure  of  the  company 
to  fence  its  road,  and  the  killing  of  horses  thereon,  which  might  have 
been  avoided  by  reasonable  efforts  will  amount  to  such  injury.    Ib. 

1739.  Although  stock  may  lawfully  run  at  large  in  the  highways, 
&c.,  the  rule  is  so  modified  in  respect  to  railroads,  that  where  they  are 
not  bound  to  fence,  they  will  have  the  right  to  run  their  trains,  and 
stock  on  their  tracks  are  trespassers.    Headen  v.  Rust,  89  111.  186. 

1 740.  Animals  getting  on  a  railway  track  not  required  to  be  fenced, 
being  wrongfully  there,  the  company  will  be  liable  only  for  gross  neg- 
ligence resulting  in  injury  to  them.    Ib. 

1741.  In  actions  against  railway  companies  for  injuries  inflicted  by 
negligence,  the  company  will  not  be  liable,  if  the  plaintiff  has  been 
guilty  of  negligence  which  has  contributed  to  the  injury,  unless  it 
appears  that  the  company  has  been  guilty  of  negligence' more  gross 
than  that  of  the  plaintiff.    /.  C.  R.  R.  v.  Middlestvorth,  43  111.  64. 

1742.  Negligence  and  carelessness  on  the  part  of  the  owner  of 
stock,  by  which  they  get  upon  a  fenced  railroad  track,  where  they  are 
killed,  will  not  lessen  the  railway  company's  liability,  where  the  exer- 
cise of  ordinary  care  and  skill  on  its  part  would  have  prevented  the 
injury.    Ib. 

1743.  Kailway  company  liable  for  injury  to  stock  when  wrong- 
fully upon  its  track,  which  might  have  been  prevented  by  ordinary 
care  and  without  danger.    T.,  P.  &  W.  Ry.  v.  Bray,  57  111.  514. 

1744.  Such  companies  must  exercise  all  due  and  proper  diligence 
and  care  to  avoid  injury  to  stock  wrongfully  running  at  large,  or  tres- 
passing on  their  track  or  right  of  way.    T.,  W.  &  W.  Ry.  v.  McGfinnis, 
71  111.  346;  T.,  W.  &  W.  Ry.  v.  Barlow,  71  111.  640. 

1745.  In  an  action  against  a  railway  company  for  killing  stock,  it 
is  a  question  of  fact  for  the  jury,  to  be  determined  from  all  the  cir- 
cusmtances  in  evidence,  whether  the  act  of  the  owner  in  permitting 
his  animals  to  run  at  large  in  violation  of  law,  is  contributory  negli- 
gence.   R.,  R.  I.  &  St.  L.  R.  R.  v.  Irish,  72  111.  404. 

1746.  It  is  not  sufficient  to  charge  a  plaintiff  with  contributory 
negligence  simply  to  show  that  he  permitted  his  stock  to  run  at  large 
in  violation  of  law;  but  it  must  appear  that  he  did  so  under  such  cir- 
cumstances that  the  natural  and  probable  consequence  of  so  doing 
was,  that  the  stock  would  go  upon  the  railroad  track  and  be  injured. 
Swing  v.  C.  &  A.  R.  R.,  72  111.  25. 

1747.  Whether  permitting  male  animals  to  run  at  larga  is  contrib- 
utory negligence,  depends,  first,  upon  whether  permitting  them  to  run 
at  large,  was  a  proximate  or  only  a  remote  cause  of  their  being  in- 
jured, and  if  it  was  a  proximate  cause,  then,  secondly,  whether  such 


220  KAILKOADS,  WAEEHOUSES, 

negligence  on  the  part  of  the  owner  was  slight,  and  that  of  the  com- 
pany gross  in  comparison  with  each  other.  R.,  R.  I.  &  St.  L.  R.  R., 
v.  Irish,  72*111.  404. 

1748.  The  fact  that  the  owner  of  stock  permits  them  to  run  at  large 
in  violation  of  the  act  prohibiting  domestic  animals  from  running  at 
large,  does  not  relieve  railway  companies  from  their  duty  to  fence 
their  roads,  or  their  liability  for  stock  injured  in  consequence  of  their 
failure  to  do  so.    Hiving  v.  C.  &  A.  R.  R.,  72  111.  25. 

1749.  Where  animals  in  counties  are  prohibited  by  law  from  run- 
ning at  large,  if  they  escape  from  their  inclosure  without  the  fault  or 
knowledge  of  their  owner  and  stray  upon  a  railroad  at  a  point  where 
the  company  have  failed  to  fence  as  required,  and  are  killed,  the  com- 
pany will  be  responsible.    0.  &  M .  Ry.  v.  Jones,  63  111.  472. 

1750.  Although  a  plaintiff  may  be  guilty  of  negligence  in  permit- 
ting his  animals  to  get  upon  a  railroad  track,  it  is  still  the  duty  of  the 
company  to  use  ordinary  skill  and  prudence  to  avoid  doing  them  in- 
jury, and  failing  in  this,  it  will  become  liable.  R.,  R.  I.  &  St.  L.  R.  R. 
v.  Irish,  72111.  404. 

1751.  No  contributory  negligence  is  chargeable  to  the  owner  of 
stock  in  letting  them  run  at  large,  where  it  breaks  out  of  his  pasture 
without  his  fault.    T.,  P.  &  W.  Ry.  v.  Johnston,  74  111.  83. 

1752.  The  owner  of  a  horse  who  voluntarily  permits  the  same  to 
run  at  large  contrary  to  the  law  in  force  in  the  county,  cannot  re- 
cover of  a  railway  company'  for  killing  the  same  by  one  of  its  trains, 
upon  the  ground  that  such  company  has  failed  to  fence  its  track  at 
the  the  place  where  the  animal  was  killed.    Peo.,  Pekin  &  Jack.  R.  R. 
v.  Champ,  75  111.  577. 

1753.  In  such  a  case,  where  the  plaintiff  is  guilty  of  contributory 
negligence,  the  company  will  not  be  relieved  from  its  duty  to  observe 
all  reasonable  precautions  to  prevent  injury  to  the  property  of  the 
plaintiff.    Ib. 

1754.  The  mere  fact  that  stock  is  running  at  large  in  violation  of 
the  statute,  does  not  relieve  railway  companies  from  liability  for  an 
injury  to  them,  from  a  neglect  to  fence  their  road,  and  no  other  negli- 
gence need  be  shown .     C.  &  St.  L.  R.  R.  v.  Murray,  82  111.  76. 

'  '1755.  Where  a  railway  company  fails  to  fence  its  road  and  stock  is 
killed  by  its  trains  in  a  county  where  it  is  lawful  for  stock  to  run  at 
large,  the  question  of  contributory  negligence  in  the  owner  in  permit- 
ting his  stock  to  run  at  large,  cannot  arise,  and  the  company  will  be 
liable.  0.  &  M.  R.  R.  v.  Fowler,  85  111.  21. 

1756.  BURDEN  or  PROOF.    In  an  action  by  the  owner  of  stock 
which  were  allowed  to  go  at  large  contrary  to  law,  to  recover  of  a 
railway  company  for  an  injury  to  them  resulting  from  its  track  being 
unfenced,  the  burden  of  showing  contributory  negligence  on  the  part 
of  the  plaintiff,  where  it  does  not  otherwise  appear,  is  on  the  company. 
C.  &  St.  L.R.R.  v.  Woosley,  85  111.  370. 

1757.  Permitting  stock  to  run  at  large  in  violation  of  the  statute, 
does  not  relieve  railway  companies  from  their  duty  to  fence  their 
roads,  or  their  liability  for  stock  injured  in  consequence  of  their  fail- 
ure to  do  so .    Ib. 

1758.  CONTRIBUTORY — letting  stock  run  at  large.   In  a  suit  against 
a  railway  company  for  stock  killed  in  consequence  of  its  neglect  to 
fence  its  road,  where  it  appears  that  such  stock  were  permitted  to  run 
at  large  in  violation  of  the  law,  the  question  whether  the  owner  has 
been  guilty  of  contributory  negligence  in  permitting  them  to  run  at 
large,  is  one  of  fact  to  be  determined  by  the  jury  from  the  circumstan- 
ces of  the  case.    C.  &  St.  L.  R.  R.  v.  Woosley,  85  111.  370. 


AND  EMINENT  DOMAIN.  221 

1759.  To  charge  the  owner  of  stock  with  contributory  negligence 
in  allowing  them  to  run  at  large  contrary  to  law,  it  must  appear  that 
he  did  so  under  such  circumstances  that  the  natural  and  pfobable  con- 
sequence of  doing  so,  was  that  the  stock  would  go  upon  the  road  and 
be  killed  or  injured.    Ib. 

EVIDENCE. 

1760.  DUTY  TO  FENCE.    Plaintiff  must  show  that  road  has  been 
open  six  months  prior  to  injury.     W.,  St.  L.  &  P.  Ry.  v.  Neikirk,  13 
Bradw.  387;  O.  &  M.  R.  R.  v.  Meisenheimer,  27  111.  30;  0.  &  M.  R.  R. 
v.  Jones,  27  111.  41;  C.  &  A.  R.  R.  v.  Taylor,  40  111.  280;  R.,  R.  I.  &  St. 
L.  R.  R.  v.  Lynch,  67  111.  149. 

1761.  Plaintiff  must  prove  there  was  no  public  crossing  where  his 
animals  were  killed,  and  that  company  was  bound  to  fence  at  that 
point.    O.  &  M.  R.  R.  v.  Taylor,  27  111.  207. 

1762.  Proof  that  plaintiff's  steers  were  killed  in  the  fall  of  1870, 
and  his  horses  and  hogs  in  the  summer  of  1871,  shows  inferentially 
that  the  road  had  been  open  for  use  six  months  before  the  horses  and 
hogs  were  killed.    R.,  R.  I.  &  St.  L.  R.R.v.  Spillers,  67  111.  167. 

1763.  PLACE  OF  INJURY.    Proof  that  stock  was  not  killed  within 
a  corporation,  nor  near  a  crossing,  will  justify  the  jury  in  finding 
that  it  was  not  killed  within  the  limits  of  a  city,  &c.    St.  L.  &  S.  Is. 
Ry.  v.  Casner,  72  111.  384. 

1 764.  Proof  that  a  cow  was  found  killed  within  a  mile  and  a  quar- 
ter of  plaintiff's  house,  is  sufficient  to  show  she  was  killed  within  five 
miles  of  a  settlement;  and  evidence  that  a  colt,  which  was  killed,  was 
kept  up,  and  only  ran  out  to  water,  is  sufficient  to  authorize  the  jury 
to  infer  that  it  was  killed  within  five  miles  of  a  settlement.    St.  L.  & 
S.  E.  Ry.  v.  Casner,  72  111.  384. 

1765.  WHERE  STOCK  GOT  ON  TRACK.    In  a  suit  against  a  railway 
company  for  killing  stock,  where  the  evidence  is  that  the  road  was 
not  fenced  at  the  place  where  the  stock  was  killed,  it  is  but  a  fair  in- 
ference that  the  stock  got  upon  the  road  at  the  place  where  it  was 
killed.    Ib. 

1766.  Negligence  in  the  management  and  running  of  a  train  is 
not  made  out  by  proof  of  the  killing  of  stock  by  it.    Ch.  &  Miss.  R. 
R.  v.  Patchin,  16  111.  198;  Great  Western  R.  R.  v.  Morthland,  30 
111.451;  C.  &A.  R.  R.  v.  Utley,38  111.410;  /.  C.  R.  R.  v.  Whalen, 
42  111.  396;  Ch.  &  N.  W.  Ry.  v.  Sarrie,  55  111.  226;  R.,  R.  I.  &  St. 
L.  R.  R.  v.  Lynch,  67  111.  149;  T.,  P.  &  W.  Ry.  v.  Pence,  68  111.  524. 

1767.  To  recover  for  cattle  killed  by  reason  of  neglect  to  fence  the 
road,  the  plaintiff  must  prove  every  material  allegation  in  his  declara- 
tion, and  that  the  injury  did  not  occur  at,any  of  the  excepted  places; 
and  this  though  the  declaration  is  defective  in  not  negativing  the 
exceptions  in  the  statute.    O.  &  M.  R.  R.  v.  Brown,  23  111.  94. 

1768.  OWNERSHIP.    Where  parties  sue  in  case  for  damages  for  kill- 
ing cattle,  claiming  as  joint  owners,  they  should  be  held  to  reasonably 
strict  proof  of  ownership.    /.  C.  R.  R.  v.  Finnigan,  21  111.  646. 

1769.  In  an  action  for  injury  to  animals,  it  is  necessary  to  show 
that  the  plaintiff  was  the  owner,  or  had  possession  of  the  same.    O.  & 
M.  R.  R.  v.  Saxton,  27  111.  426. 

1770.  CONNECTING  DEFENDANT  WITH  INJURY.    The  proof  must 
show  that  the  injury  was  done  by  the  road  of  the  defendant  sued.    0. 
&  M.  R.  R.  v.  Taylor,  27  111.  207. 

1771.  Proof  that  the  stock  was  found  by  the  side  of  the  railroad 
"badly  smashed  up,"  will  justify  a  finding  that  the  injury  was  done  by 


222 


the  cars  or  locomotives  of  the  defendant.     /.  C.  R.  R.  v.  Whalen,  42 
111.  396. 

1772.  Evidence  that  plaintiff's  cow,  when  found,  was  lying  on  her 
back  in  the  railway  ditch,  between  two  or  three  feet  from  the  track, 
bloated  and  the  blood  oozing  from  her  nose.     The  jury  found  that  the 
cow  was  killed  by  a  passing  train,  and  the  court,  though  doubtful  of 
the  correctness  of  the  finding,  refused  to  disturb  it.     Ch.  &  N .  W. 
Ry.  v.  Dement,  44  111.  74. 

1773.  Where  it  is  shown  that  the  defendant  company  was  incor- 
porated by  the  name  it  bears  at  the  session  of  the  legislature  next  pre- 
ceding the  injury  qomplained  of,  and  there  is  no  proof  or  suggestion 
that  any  other  railroad  was  operated  in  that  part  of  the  country, 
where  the  injury  was  done,  it  may  be  fairly  inferred  that  the  injury 
was  done  by  the  defendant's  road.    T.,  P.  &  W.  Ry.  v.  Arnold,  49 
111.  178. 

1774.  The  evidence  must  connect  the  defendant  with  the  injury 
complained  of ;  but  it  is  not  required  that  such  fact  be  proved  beyond 
a  reasonable  doubt.    A  preponderance  of  the  evidence  is  sufficient. 
T.,  P.  &  W.  Ry.  v.  Eastburn,  54  111.  381. 

1775.  Evidence  held  sufficient  to  connect  the  defendant  with  the 
injury.    R.,  R.  1.  &St.  L.  R.  R.  v.  Lewis,  58  111.  49. 

1776.  OF  CONDITION  OF  FENCES.    If  stock  is  killed  at  a  point 
where  it  is  the  duty  of  the  company  to  maintain  a  fence,  this  is  a 
circumstance  which  may  be  considered  in  determining  the  question 
whether  the  fences  and  cattle-guards  were  good  and  sufficient.    C.  & 
A.  R.  R.  v.  Utley,  38  111.  410. 

1777.  VENUE.     It  is  not  essential  to  a  recovery  to  prove  that  the 
injury  complained  of  was  done  within  the  jurisdiction  of  the  court. 
T.,  P.  &  W.  Ry.  v.  Webster,  55  111.  338. 

1778.  TIME  OF  INJURY.    No  recovery  can  be  had  for  stock  killed 
after  the  action  is  brought.    T.,  P.  &  W.  Ry.  v.  Arnold,  49  111.  178, 

VARIANCE. 

1779.  Where  the  declaration  counts  on  a  common  law  liability  for 
animals  killed  or  injured,  no  recovery  can  be  had  under  the  statute  by 
proving  a  neglect  to  fence.    T.  H.,  A.  &  St.  L.  R.  R.  v.  Augustus,  21 
111.  186;  /.  C.  R.  R.  v.  Middlesworth,  43  111.  64. 

1780.  Proof  of  the  injury  on  the  day  alleged  is  not  required.    It 
may  be  shown  to  have  taken  place  at  any  time  within  the  statute  of 
limitations.    T.,  P.  &.  W.  Ry.  v.  McClannon,  41  111.  238. 

1781.  Under  a  declaration  showing  an  injury  to  a  horse  resulting 
from  the  failure  of  the  railway  company  to  maintain  and  keep  in  re- 
pair its  fences  on  its  roadway,  evidence  that  the  animal  strayed  upon 
the  track  through  a  gate  at  a  farm  crossing  which  had  been  left  open 
and  was  killed,  is  inadmissible.    /.  C.  R.  R.  v.  McKee,  43  111.  119. 

1782.  Where  the  declaration  avers  that  the  defendant  carelessly 
"ran,  conducted  and  directed"  its  trains,  whereby,  &c.,  it  is  error  to 
instruct  the  jury  that  they  may  consider  the  condition  of  the  brakes 
employed.    In  such  case  the  action  is  for  carelessness  and  not  for  a 
failure  to  properly  equip  the  road.    C.  B.  &  Q.  R.  R.  v.  Magee,  60 
111.  529. 

BURDEN  OF  PROOF. 

1783.  To  show  negligence  other  than  neglect  to  fence.    Ch.  &  N. 
W.  R.  R.  v.  Taylor,  8  Bradw.  108;  Galena  &  Ch.  Union  R.R.  v.  Craw- 
ford, 25  111.  529;  C.  &  A.  R.  R.  v.  Utley,  38  111.  410. 


AND  EMINENT  DOMAIN.  223 

1784.  To  show  contributing  negligence  in  plaintiff.    C.  &  St.  L.  R. 
R.  v.  Woosley,  85  111.  370. 

1785.  To  show  no  contract  for  owner  to  fence  railroad  track,    (treat 
Western  R.  -R.  v.  Bacon,  30  111.  347. 

1786.  To  show  that  land-owner  has  agreed  to  fence  road  or  has 
received  compensation  in  damages  for  fencing.    T.,  P.  &  W.  Ry.  v. 
Pence.  68  111.  524;  T7.,  P.  &  W.  Ry.  \.  Pence,  71  111.  174;  T.,  P.  &  W.  Ry. 
v.  Lavery,  71  111.  522. 

MEASURE  OF  DAMAGES. 

1787.  INJURY — me  for  beef.    Where  an  animal  is  not  so  seriously 
injured  but  that  it  is  of  value  for  food,  it  is  the  duty  of  the  owner  to 
dispose  of  it  to  the  best  advantage.    The  measure  of  damage  in  such 
case,  is  the  difference  in  its  value  as  injured,  from  its  value  before  the 
injury.    /.  C.  R.  R.  v.  Finnigan,21  111.  646;  T.,  P.  &  W.  Ry.  v. 
Parker,  49111.  385. 

1788.  Where  the  weather  is  warm  and  the  cattle,  when  found,  are 
swollen  and  unfit  for  beef,  the  plaintiff  is  entitled  to  recover  their  full 
value.    T.,  P.  &  W.  Ry.  v.  Sweeney, 41  111.  226. 

1789.  Where  the  cattle  killed,  when  found,  are  mangled,  bruised 
and  swollen,  the  plaintiff  will  not  be  required  to  use  any  diligence  to 
dispose  of  their  dead  bodies  to  entitle  him  to  recover  their  full  value. 
R.,  R.  I.  &St.  L.  R.  R.  v.  Lynch,  67  111.  149. 

1790.  Where  the  stock  killed  is  in  good  condition,  it  is  the  duty  of 
the  owner  to  dispose  of  it  to  the  best  advantage  possible,  by  convert- 
ing it  into  beef  or  otherwise,  and  he  is  entitled  to  reasonable  time  in 
which  to  do  so.    T.,  P.  &  W.  Ry.  v.  Parker,  49  111.  385. 

1 791.  But  where  the  company  on  the  same  evening  of  the  accident 
takes  possession  of  and  buries  the  animal,  it  cannot  be  urged  that  the 
owner  failed  to  perform  his  duty  by  not  disposing  of  the  animal  for 
beef.    Ib. 

1792.  COMPENSATORY  ONLY.    The  damages  for  stock  killed  by  a 
railroad  company  through  negligence  merely,  as  a  neglect  to  fence  its 
track,  is  compensatory  only.    To  authorize  more,  circumstances  of 
aggravation  must  be  shown.    T.,P.  &  W.  Ry.v.Johnston,14t  111.83. 

1793.  The  owner  of  stock  killed  by  a  railway  company  for  want  of 
a  fence,  is  not  entitled  to  interest  on  its  value  from  the  time  of  the 
killing.    Ib . 

MEASURE  OF  RECOVERY. 

1794.  ATTORNEY'S  FEES.    The  statute  gives  an  attorney's  fee  only 
in  actions  to  recover  damages  for  neglect  to  erect  and  maintain  fences. 
If  the  suit  embraces  other  matters,  the  fee  should  be  limited  to  the 
cause  of  action  growing  out  of  a  failure  to  fence.     W.,  St.  L.  &  P.  Ry. 
v.  Neikirk,  13  Bradw.  387 . 

1795.  In  an  action  against  a  railway  company  to  recover  for  kill- 
ing a  colt,  an  attorney's  fee  is  recoverable,  if  the  loss  is  chargeable  to 
the  statutory  negligence  in  not  fencing,  but  not  if  chargeable  to  com- 
mon law  negligence.    C.,  M.  &  St.  P.  R.  R.  v.  Phillips,  14  Bradw.  265. 

1796.  Under  this  section  the  attorney's  fee  may  be  recovered  in  the 
suit  for  damages  for  the  stock  killed,  and  the  law  giving  such  fee  in 
such  a  case,  is  not  special  legislation.     W..St.  L.  &  P.  Ry.  v.  Lameux. 
14  Bradw.  469. 

1797.  The  attorney's  fee  is  allowable  only  where  the  railway  com- 
pany has  failed  to  comply  with  the  requirements  of  the  statute,  and 
such  failure  must  appear  from  the  evidence.    Ib. 


224  EAILROADS,  WAREHOUSES, 

1798.  SAME— notice  of.    The  statute  making  a  railway  corporation 
liable,  in  an  action  for  stock  killed,  for  a  reasonable  attorney's  fee,  is 
notice  to  such  corporation  when  sued  for  injury  to  stock,  that  such 
fee  will  be  claimed,  and  it  is  not  necessary  it  should  have  any  other 
notice.    P.,  D.  &  E.  Ry.  v.  Duggan,  109  111.  537 . 

1799.  SAME — how  recovered.     The  liability  of  a  railway  company 
for  an  attorney's  fee  in  an  action  to  recover  for  an  injury  to  animals 
growing  out  of  its  neglect  to  fence  its  track,  under  the  act  of  1879, 
arises  at  the  same  instant  with  its  liability  for  damages;  and  such  fee 
may  be  assessed  in  the  same  suit  with  the  damages,  the  law  not 
favoring  a  multiplicity  of  actions.    Ib.    As  to  fencing  in  cities  see 
ante,  144. 

1800.      KlGHT  OF  WAY  CLEAR  OF  COMBUSTIBLES.      §     1|.    It 

shall  be  the  duty  of  all  railroad  corporations  to  keep  their 
right  of  way  clear  from  all  dead  grass,  dry  weeds,  or  other 
dangerous  combustible  material,  and  for  neglect  shall  be 
liable  to  the  penalties  named  in  section  1.  [E.  S.  1887,  p. 
1013,  §  63;  S.  &  C.,  p.  1933,  §  63;  Cothran,  p.  1152,  §  49.  J 

1801.  If  the  company  suffers  grass  to  accumulate  on  its  right  of 
way  by  means  of  which  fire  from  an  engine  is  communicated  to  the 
fences  and  grass  of  another,  which  are  destroyed,  the  company  will  be 
liable  on  the  ground  of  negligence.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Rogers, 
62  111.  346. 

1802.  It  is  negligence  to  allow  weeds  or  anything  else  to  grow 
upon  the  right  of  way  to  such  a  height  as  to  obstruct  the  view  of  a 
highway  crossing,  and  if  injury  results  to  stock  at  such  crossing  that 
might  have  been  avoided  but  for  such  obstruction,  the  company  will 
be  liable.    1.  &  St.  L.  R.  R.  v.  Smith,  78  111.  112. 

1803.  It  is  negligence  to  permit  brush  or  other  obstructions  on 
right  of  way  so  as  to  prevent  the  view  of  approaching  trains  by  per- 
sons attempting  to  cross  the  road  at  a  highway  intersection.    Dimlck 
v.  Ch.  &  N.  W.  Ry.,  80  111.  338. 

1804.  Lessee  of  a  railroad  is  guilty  of  negligence,  if  it  fails  to  keep 
the  right  of  way  clear  of  all  dead  grass,  weeds,  &c.,  and  will  be  liable 
for  injury  from  the  escape  and  transmission  of  fire  from  it  engines. 
P.,  C.  &  St.L.  Ry.  v.  Campbell,  86  111.  443. 

1805.  A  railway  company  should  not  permit  obstructions  upon  its 
right  of  way  near  a  crossing,  which  will  prevent  the  public  from  ob- 
serving the  approach  of  trains.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Hillmer, 
72  111.  235. 

1806.  It  is  negligence  to  permit  vegetation  to  grow  upon  right  of 
way  so  that  cattle  may  be  concealed  from  view.    Bass  v.  C.,  B.  &  Q. 
R.  R.,  28  111.  9.    See  post,  2484. 

1807.  ALLOWING,  ETC.,  ANIMAL  ON  RIGHT  OF  WAY — BREAK- 
ING FENCE,  ETC.  §  2.  If  any  person  shall  ride,  lead  or  drive 
any  horse  or  other  animal  upon  the  track  or  lands  of  such 
railroad  corporation,  and  within  such  fences  or  guards  (ex- 
cept to  cross  at  farm  or  road  crossings),  without  the  consent 
of  the  corporation;  or  shall  tear  down,  or  otherwise  render 
insufficient  to  exclude  stock,  any  part  of  such  fence,  guards, 
gates  or  bars — or  shall  leave  the  gates  or  bars  at  farm  cross- 
ings open  or  down — or  shall  leave  horses  or  other  animals 
standing  upon  farm  or  road  crossings,  he  shall  be  liable  to  a 


AND  EMINENT  DOMAIN.  225 

penalty  of  not  less  than  $10,  nor  more  than  $100,  to  be  recov- 
ered in  an  action  of  debt,  before  any  court  having  competent 
jurisdiction  thereof,  in  the  name  of  such  railroad  corpora- 
tion, and  for  the  use  of  the  school  fund  in  the  county,  and 
shall  pay  all  damages  which  shall  be  sustained  thereby  to  the 
party  aggrieved.  [In  lieu  of  L.  1855,  p.  174,  §  3.  E.  S.  1887, 
p.  1013,  §  64;  S.  &  C.,  p.  1933,  §  64;  Cothran,  p.  1152,  §  50.] 

1808.  The  right  of  way  is  the  exclusive  property  of  the  railway 
company  upon  which  no  unauthorized  person  has  a  right  to  be  for 
any  purpose,  and  any  person  traveling  over  it,  is  a  wrong-doer  and  a 
trespasser.    /.  C.R.R.  v.  Godfrey,  71  111.  500. 

1809.  The  mere  acquiescence  of  the  company  in  the  use  of  its  track 
or  right  of  way  by  persons  passing  along  it  for  a  footway,  does  not 
give  them  a  right  of  way,  nor  will  the  company  be  bound  to  protect 
or  provide  safeguards  for  such  persons.     76. 

1810.  It  is  negligence  to  walk  along  a  railroad  track.    Ib. 

1811.  Party  wrongfully  upon  the  railway  track  held  to  a  greater 
degree  of  care  than  if  there  lawfully.    Aurora  Branch  R.  R.  v. 
Grimes,  13  111.  585. 

1812.  Duty  of  company  where  a  team  is  stalled  with  a  loaded 
wagon  on  track.    C.  &  A.  R.  R.  v.  Hogarth,  38  111.  370. 

1813.  It  is  negligence  for  a  person  to  walk  upon  the  track  of  a 
railroad,  whether  laid  in  a  street  or  an  opon  field,  and  he  who  deliber- 
ately does  so,  must  assume  the  risk  of  the  peril  he  may  encounter.    /. 
C.  R.  R.  v.  Hall,  72  111.  222.    See,  also,  /.  C.  R.  R.  v.  Hammer,  72 
111.  347. 

1814.  If  the  conduct  of  one  killed  while  walking  upon  a  railroad 
amounts  to  gross  negligence,  the  company  will  not  be  liable  except 
for  willful  or  criminal  negligence.     /.  C.  R.  R.  v.  Hetherington,  83 
111.  510. 

1815.  Where  a  railroad  passes  over  ground  not  used  by  any  except 
employes  of  the  company,  the  engineer  having  no  reason  to  apprehend 
that  any  one  will  be  on  the  track,  his  failure  to  take  precaution  to 
discover  some  one  on  it,  is  not  negligence  in  the  company.     /.  C.  R. 
R.y.  Frelka, 9 Bradw.  605. 

1816.  WHEN  COMPANY  NEGLECTS  TO  BUILD  —  NOTICE. 
§  3.  Whenever  a  railroad  corporation  shall  neglect  or  refuse 
to  build  or  repair  such  fence,  gates,  bars  or  farm  crossings, 
as  provided  in  this  act,  the  owner  or  occupant  of  the  lands 
adjoining  such  railroad,  or  over  or  through  which  the  railroad 
track  is  or  may  be  laid,  may  give  notice,  in  writing,  to  such 
corporation,  or  the  lessees  thereof,  or  the  persons  operating 
such  railroad,  to  build  such  fence,  gate,  bars  or  farm  cross- 
ings within  thirty  days  (or  repair  said  fence,  gate,  bars  or 
farm  crossings,  as  the  case  may  be,  within  ten  days,)  after 
the  service  of  said  notice.  Such  notice  shall  describe  the 
lands  on  which  said  fence,  gates,  bars  or  farm  crossings  are 
required  to  be  built  or  repaired.  Service  of  such  notice 
may  be  made  by  delivering  the  same  to  any  station  agent  of 
said  railroad  corporation  or  the  persons  operating  such  rail- 
road. [  This  is  §  1,  Laws  1869,  p.  315,  extended  to  gates, 

-16 


226  RAILROADS,  WAREHOUSES, 

bars  and  farm  crossings.     R.  S.  1887,  p.  1014,  §65;  S  &  C., 
p.  1934,  §  65;  Cothran,  p.  1152,  §  51.] 

1817.  ADJOINING  OWNER  MAY  BUILD  AND  RECOVER.  §  4. 
If  the  party  so  notified  shall  refuse  to  build  or  repair  such 
fence,  gates,  bars  or  farm  crossings,  in  accordance  with  the 
provisions  of  this  act,  the  owner  or  occupant  of  the  land  re- 
quired to  be  fenced  shall  have  the  right  to  enter  upon  the 
land  and  track  of  said  railroad  company,  and  may  build 
or  repair  such  fence,  gates,  bars  or  farm  crossings,  as  the 
case  may  be,  and  the  person  so  building  or  repairing  such 
fence,  gates,  bars  or  farm  crossings,  shall  be  entitled  to 
double  the  value  thereof  from  such  corporation,  or  party 
actually  occupying  or  using  such  railroad,  to  be  recovered, 
with  interest  at  one  per  cent,  per  month,  as  damages,  from 
the  time  such  fence,  gates,  bars  or  farm  crossings  were  built 
or  repaired,  in  any  court  of  competent  jurisdiction,  together 
with  costs,  to  be  taxed  by  the  court.  [This  is  §  2  of  act  of 
1869  (L.  1869,  p.  315),  extended  to  gates,  bars  and  farm 
crossings  and  provision  for  entry  on  right  of  way  inserted, 
and  double  value  substituted  for  single  value.  R.  S.  1887, 
p.  1014,  §  66;  S.  &  C.,  p.  1934,  §  66;  Cothran,  p.  1153,  §  52.] 

1818.  After  notice  to  build  a  certain  line  of  fence  and  neglect  of 
the  company  to  make  any  part  of  such  fence,  the  land-owner  built 
half  of  the  line  and  sued  to  recover  for  the  part  built  by  him:    Held, 
that  he  was  entitled  to  recover  without  first  making  the  entire  fence. 
T.,  P.  &  W.  Ry.  v.  Sieberns,  63  111.  217. 

1819.  This  act  authorizing  the  land-owner  to  fence  and  hold  the 
company  liable,  does  not  release  railway  companies  from  their  liability 
under  the  act  of  1855  for  stock  killed.    The  act  creates  no  new  duty 
upon  the  land-owner  to  fence,  but  merely  gives  him  the  privilege  to 
do  so,  and  the  fence  when  built  by  the  owner,  will  be  the  property  of 
the  company.    T.,  P.  &  W.  Ry.  v.  Pence,  68  111.  524. 

1820.  Where  a  railway  neglects  and  refuses  to  fence  its  right  of 
way,  after  notice  by  the  owner  of  adjoining  land,  the  latter  may  build 
the  fence  and  recover  double  the  value  thereof  in  an  action  against 
either  the  corporation  owning  the  road,  or  any  other  party  occupying 
or  using  such  railroad,  at  his  election.    O.  &  M.  R.  R.  v.  Russell,  115 
111.  52. 

1821.  It  is  no  defence  to  such  action  against  the  corporation  that 
its  property,  &c.,  is  in  the  hands  of  a  receiver,  and  such  corporation  is 
enjoined  from  interfering  with  the  property  or  disturbing  the  posses- 
sion of  the  receiver.    Lb.  ;  C.  &  St.  L.  R.  R.  v.  Peoples,  92  111.  97;  C.  & 
St.  L.  R.  R.  v.  Warrington,  92  111.  157. 

1822.  To   entitle  the  owner  of   land  over  which  a  railroad  is 
operated  to  recover  of  the  company  double  the  value  of  any  fence 
built  by  him  upon  its  neglect  to  do  so  on  proper  notice,  the  statute 
must  be  strictly  followed,  and  the  fence  must  be  such  as  the  statute 
requires,  and  be  built  in  the  mode  the  statute  contemplates.    The 
fence  must  be  built  on  the  sides  of  the  railroad.    If  built  two  feet  in- 
side of  right  of  away,  the  penalty  cannot  be  recovered.     W.,  St.  L.  & 
P.  Ry.  v.  Zeigler,  108  HI.  304. 

1823.  FENCE  IN  RIGHT  OF  WAY.    The  statute  is  not  complied  with 
by  erecting  a  fence  several  feet  within  the  right  of  way.    The  statute 


AND  EMINENT  DOMAIN.  227 

contemplates  that  the  fence  shall  embrace  the  entire  right  of  way.  O. 
&  M.  Ry.  v.  People,  121  111.  483. 

1824.  REMEDY  TO  COMPEL  BUILDING  OF.    Where  the  company,  on 
notice,  erects  a  feuce  several  feet  inside  its  right  of  way,  and  refuses 
to  let  the  land-owner  join  his  fences  with  the  same,  so  as  to  enclose 
his  land,  mandamus  will  lie  to  compel  the  company  to  erect  a  fence 
along  the  line  of  its  right  of  way .    76 . 

1825.  BOAEDS  AT  CEOSSINGS.     §  5.     Every  railroad  cor- 
poration shall  cause  boards,  well  supported  by  posts  or  other- 
wise, to  be  placed  and  constantly  maintained  upon  each  pub- 
lic road  or  street,  where  the  same  is  crossed  by  its  railroad 
on  the  same  level.     Said  boards  shall  be  elevated  so  as  not  to 
obstruct  the  travel,  and  to  be  easily  seen  by  travelers.     On 
each  side  of  said  board  shall  be  painted  in  capital  letters,  of 
at  least  the  size  of  nine  inches  each,  the  words   "railroad 
crossing,"  or  "look  out  for  the  cars."     This  section  shall  not 
apply  to  streets  in  cities  or  incorporated  towns  or  villages, 
unless  such  railroad  corporation  shall  be  required  to  put  up 
such  boards  by  the  corporate  authorities  of  such  cities,  towns 
or  villages:     Provided,  that  when  warning  boards  have  al- 
ready been  erected,  under  existing  laws,  the  maintenance  of 
the  same  shall  be  a  sufficient  compliance  with  the  require- 
ments of  this  section.     [2dL.  1849,  p.  32;  E.  S.  1887,  p.  1014, 
§  67;  S.  &  C.,  p.  1934,  §  67;  Cothran,  p.  1153,  §  53.] 

1826.  The  failure  to  maintain  such  signal  boards  raises  a  liability 
only  for  injuries  caused  by  such  failure.  When  a  party  with  full 
knowledge  of  there  being  a  railroad  crossing  before  him,  drives  upon 
the  track  and  is  injured  by  a  passing  train,  he  cannot  recover  for  the 
want  of  such  board  merely.  C.  &  A.  R.R.  v.  Robinson,  8  Bradw.  140, 
142.  See  notes  to  next  section. 

1827.  SIGNALS  AT  ROAD  CROSSINGS  —  BELL  OR  WHISTLE  TO 
BE  SOUNDED.  §  6.  Every  railroad  corporation  shall  cause  a 
bell  of  at  least  thirty  pounds  weight,  and  a  steam  whistle 
placed  and  kept  on  each  locomotive  engine,  and  shall  cause 
the  same  to  be  rung  or  whistled  by  the  engineer  or  fireman, 
at  the  distance  of  at  least  eighty  rods  from  the  place  where 
the  railroad  crosses  or  intersects  any  public  highway,  and 
shall  be  kept  ringing  or  whistling  until  such  highway  is 
reached.  [  L.  1869,  p.  308;  (re-written).  R  S.  1887,  p. 
1014,  §  68;  S.  &  C.,  p.  1935,  §  68;  Cothran,  p.  1153,  §  54.  J 

DECISIONS  ON  STATUTE. 

IN  GENERAL. 

1828 .  WHAT  COMPANIES  BOUND  BY  .  The  law  (1849)  is  binding  on 
corporations  created  before  its  passage.  Galena  &  Ch.  Union  R.  R. 
v.  Loomis,  13  111.  548:  The  law  of  1849  was  a  general  law,  and  its 
provisions  apply  to  all  railway  companies  either  before  or  thereafter 
chartered.  /.  &  St.  L.  R.  R.  v.  Blackman,  63  111.  117.  The  police 
regulations  of  the  act  of  1849  requiring  railway  companies  to  ring  a 
bell  or  sound  a  whistle  before  reaching  a  public  road-crossing,  apply  to 


228  BAILROADS,  WAREHOUSES, 

all  railroads  in  the  state,  not  specially  exempted  by  their  charters— as 
well  to  those  chartered  since  the  passage  of  the  act,  as  to  those  char- 
tered before  that  time.  Western  Union  R.  R.  v.  Fulton,  64  111 .  271. 

1829 .  EXEMPTION— from  duty.    An  act  which  exempts  a  railway 
company  from  ringing  a  bell  or  sounding  a  whistle  at  a  road-crossing, 
is  not  unconstitutional.     O.  &  Ch.  U.  R.R.v.  Dill,  22  111.  264. 

1830.  SIGNAL — may  be  either  by  bell  or  whistle.    The  statute  does 
not  require  a  company  to  both  ring  a  bell  and  sound  a  whistle.    If  it 
does  either  it  has  discharged  its  duty  in  this  respect.    C.,B.&Q.  R. 
R.  v.  Damerell,  81  111.  450;  St.  L.,  A.  &  T.  H.  R.  R.  v.  Pflugmacher, 
9  Bradw.  300. 

DUTY  OF  BAIL  WAY  COMPANY  AT  HIGHWAY  CROSSING. 

(a)  TO  GIVE  SIGNAL  OF  APPROACH. 

1831.  ONLY  AT  HIGHWAY  CROSSING.    A  railway  company  is  not 
required  by  the  statute  to  ring  a  bell  or  blow  a  whistle  at  a  farm  cross- 
ing.   This  is  required  only  at  the  intersection  or  crossing  of  a  public 
highway.     W.,  St.  L.  &  P .  Ry.\.  Neikirk,  13  Bradw.  387. 

1832.  OBJECT  OF  SIGNALS — for  whose  benefit.    The   statute  is 
designed  for  the  protection  of  travelers  using  the  highway,  and  not 
for  the  benefit  of  persons  walking  upon  the  track  without  right,  or 
those  crossing  at  a  distance  from  the  public  road  over  a  private  cross- 
ing.    W.,St.  L.  &  P.  Ry.  v.  Neikirk,  15  Bradw.  172;  Harty  v.  Cen- 
tral R.  R.,  42  N.  Y.468;  Voak  v.  Northern  Cent.  .R.  .R.,75  N.  Y.  320: 
See  also  /.  C.  R.  R.  v.  Hall,  72  111.  222;  /.  C.  R.R.  v.  Hetherington, 
83  111.  510. 

1833.  Nor  was  it  designed  for  the  protection  of  passengers  leaving 
their  seats  not  at  a  regular  station.    R.,JR.  I.  &  St.  L.  R.  J2.  v. 
Coultas,  67  111.  398. 

1834.  Yard  master  not  required  to  give  signal  before  uncoupling 
cars  standing  on  track  in  yard.     C.  &  A.  R.  R.  v.  McLaughlin,  47 
111.  265. 

1835.  Nor  is  it  necessary  to  give  such  signal  to  one  who  otherwise 
is  informed  of  the  approach  of  the  train,  or  one  who  sees  it  approach- 
ing and  attempts  to  cross.    C . ,  R .  I.  &  P.  R.  R .  v .  Sell,  70  111.  102 ;  O . 
&  M.  Ry.  v.  Eaves,  42  111.  288;  L.,  S.  &  M.  S.  R.  R.  v.  Clemens,  5 
Bradw.  77. 

(6)  LIABILITY  FOR  NEGLECT  TO  GIVE  SIGNAL. 

1836.  NEGLECT  OF  DUTY,  MUST  CAUSE  THE  INJURY.    Unless  the 
injury  complained  of  is  the  result  of  the  neglect  to  give  the  statutory 
signal  of  warning,  there  can  be  no  recovery  for  it  on  that  ground. 
C.,B.  &Q.  R.  R.  v.  Doorak,  7  Bradw.  555;  P.,  D.  &  E.  Ry.  v.  Foltz, 
13  Bradw.  535. 

1837.  CONNECTION  OF  NEGLECT  WITH  THE  INJURY,  TO  BE  SHOWN 
BY  THE  PLAINTIFF.    The  company  is  not  liable  for  any  and  all  dam- 
ages a  party  may  sustain  where  it  has  omitted  to  give  the  signal.    To 
make  the  company  liable,  it  must  be  shown  that  the  injury  was  the 
result  of  the  failure  to  give  the  signal .     G.  &  Ch.  U.  R.  R.  v.  Loomis, 
13  111.  548;  P.,  D.  &  E.  Ry.  v.  Foltz,  13  Bradw.  535. 

1838.  THE  BURDEN  OF  PROOF  is  upon  the  plaintiff  to  show  that 
the  injury  resulted  from  the  failure  to  ring  the  bell  or  sound  the 
whistle,  and  not  upon  the  defendant  to  show  the  injury  was  not  the 
result  of  such  neglect.    P.,  D.  &  E.  Ry.  v.  Foltz,  13  Bradw.  535. 

1839.  Until  some  proof  is  given  tending  to  show  that  the  injury 
resulted  from  a  failure  to  ring  a  bell  or  sound  the  whistle,  the  burden 


AND  EMINENT  DOMAIN.  229 

of  proving  a  negative  —  that  it  did  not  arise  from  such  failure,  should 
not  be  thrown  upon  the  company.  &.  &  Oh.  U.  R.  R.  v.  Loomis,  13 
111.  548. 

1840.  The  omission  to  ring  a  bell  or  sound  a  whistle  at  a  road 
crossing  does  not  render  the  company  liable  for  an  injury  to  animals, 
unless  it  is  made  to  appear  that  such  signal  would  have  prevented  the 
injury.    /.  C.  R.  R.  v.  Phelps,  29  111.  447. 

1841.  The  omission  to  ring  a  bell  or  sound  a  whistle  for  the  re- 
quired distance  on  approaching  a  road  crossing,  renders  the  company 
liable  for  "all  damage  which  shall  be  sustained  by  any  person  by 
reason  of  such  neglect."    But  it  will  not  per  se  render  the  company 
liable  for  injuries.    The  injury  must  be  shown,  by  circumstances  at 
least,  to  have  been  the  consequence  of,  or  caused  by  such  neglect.  Ch. 
&R.LR.R.V.  McKean,  40  111.  218. 

1842 .  The  neglect  to  give  such  warning  of  approach,  is  not  of  it- 
self such  negligence  as  will  justify  a  recovery  for  the  killing  of  an 
animal  upon  the  track.    The  injury  must  be  shown  to  be  the  result  of 
the  omission  or  neglect  of  duty  imposed,  and  this  the  jury  must  de- 
termine.   I.&St.  L.R.R.v.  Blackman,  63  111.  117. 

1843.  A  recovery  against  a  railway  company  for  killing  stock,  will 
be  sustained,  if  there  is  evidence  from  which  the  jury  may  fairly  infer 
that  the  killing  was  caused  by  the  failure  to  ring  the  bell  or  sound 
the  whistle  and  the  rapid  speed  of  the  train.    /.  &  St.  L.  R.  R.  v.  Hol- 
loway,  63  111.  121. 

1844.  The  omission  to  ring  a  bell  or  sound  a  whistle  for  the  whole 
distance  required  by  the  statute  at  the  crossing  of  a  public  highway, 
being  eighty  rods,  will  subject  the  company  to  the  penalty  given;  but 
will  not  subject  it  to  liability  for  damages,  unless  they  were  caused 
by  reason  of  such  neglect.    C.  &  A.  R.  R.  v.  McDaniels,  63  111.  122. 

1845.  While  it  is  negligence  to  omit  giving  the  signal  on  approach- 
ing a  public  crossing,  yet  the  company  is  not  necessarily  liable  for 
every  accident  that  may  occur  where  this  duty  is  omitted .     It  is  only 
where  the  injury  happens  by  reason  of  such  neglect  that  the  company 
is  liable.    The  plaintiff  must  show,  not  only  this  omission  of  duty, 
but  also  from  facts  and  circumstances  at  least,  that  the  injury  was 
occasioned  by  such  neglect.    C.,  B.  &  Q.  R.  R.  v.  Van  Patten,  64  111. 
510. 

1846.  Where  it  reasonably  appears  that  if  the  statutory  signal  had 
been  given,  an  animal  on  the  track  would  have  been  f lightened  off 
and  been  saved,  the  company  will  be  liable.    C.  &  A,  R.  R.  v.  Hender- 
son, 66  111.  494. 

1847.  While  the  statute  imposes  a  penalty  for  an  omission  to  com- 
ply with  its  requirements,  more  is  required  to  create  a  liability  for  an 
injury  to  person  or  property.    In  the  latter  case,  where  no  other  negli- 
gence is  proved,  the  injury  must  be  "by  reason  of  the  neglect"  to  ring 
the  bell  or  sound  the  whistle,  and  the  proof  must  show  that  it  was 
the  probable  result  of  the  omission.    R.,  R.  I.  &  St.  L.  R.  R.  v.  Linn, 
67  111.  109. 

1848.  The  omission  to  give  the  statutory  signal  as  the  train  ap- 
proaches a  public  crossing,  will  not  per  se  render  it  liable.     To  make 
the  company  liable,  it  must  be  a  just  inference  from  the  evidence, 
that  the  injury  was  caused  by  such  neglect  of  duty.     C.,  B.  &  Q.  R.  R. 
v.  Lee,  68  111.  576. 

1849.  Where  it  is  proved  that  a  person  injured  by  a  collision  at  a 
railroad  crossing  of  a  highway,  was  in  the  exercise  of  due  care  and 
caution,  it  may  be  a  reasonable  inference  that  the  accident  was  pro- 
duced by  reason  of  such  neglect  to  ring  a  bell  or  sound  a  whistle.     It 


230  RAILROADS,  WAREHOUSES, 

may  be  shown  by  circumstantial,  as  well  as  by  direct  evidence.    C.,  B. 
&  Q.  R.  R.,  v.  Lee,  68  111.  576. 

1850.  The  statute  only  imposes  a  liability  upon  a  railway  company 
for  neglecting  to  give  the  signal  as  its  train  approaches  a  highway 
crossing,  for  injury  resulting  from  that  neglect  of  duty.    Where  it  ap- 
pears that  the  non-compliance  with  the  statute  did  not  result  in 
injury,  no  causq  of  action  will  arise.    The  injury  complained  of  must 
be  the  result  of  that  neglect,  either  in  whole  or  part.    /.  C.  R.  R.  v, 
Benton,  69  111.  174. 

1851.  If  the  company  is  also  guilty  of  other  negligence,  and  it  is 
doubtful  which  produced  the  injury,  or  if  both  combined  produced  it, 
then  the  company  will  be  liable,  if  the  injured  party  is  not  also  in  de- 
fault to  such  an  extent  as  to  relieve  the  company  from  liability.    Ib . 

1852.  It  is  not  enough  to  create  a  liability  for  stock  killed  by  a 
railway  train,  to  prove  that  the  bell  was  not  rung  or  the  whistle 
sounded.    It  must  be  made  to  appear  by  facts  and  circumstances 
proved  that  the  accident  was  caused  by  reason  of  such  neglect.    Q.,  A. 
&  St.  L.  R.  R.  v.  Wellhcener,  72  111.  60;  40  111.  218. 

1853.  The  omission  to  ring  a  bell  or  sound  a  whistle  at  a  road  cross- 
ing does  not  render  a  railway  company  liable  for  injury  to  animals, 
or  to  a  person,  unless  it  is  made  to  appear  the  warning  might  have 
prevented  the  injury.    T.,  W.  &  W.  Ry.  v.  Jones,  76  111.  311. 

1854.  Where  the  omission  appears  not  to  have  contributed  in  the 
slightest  degree  to  an  injury  or  accident  on  a  train  of  cars,  the  railway 
company  operating  the  same,  will  not  be  subjected  to  liability  on  that 
ground  in  a  suit  for  damages.    T.,  W.  &  W.  Ry.  v.  DurJiin,  76  111.  395. 

1855.  Whether  failure  to  give  signal  is  negligence,  a  question  of 
fact.    Whether  or  not  a  failure  to  sound  a  whistle,  is  negligence  is  a 
question  of  fact  for  the  jury,  and  it  is  error  in  an  instruction  to  as- 
sume that  it  is  negligence.    T.  H.  &  I.  R.  R.  v.  Jones,  11  Bradw.  322. 

1856.  Whether  a  failure  to  ring  a  bell  or  sound  a  whistle,  when 
not  required  by  statute,  is  negligence,  is  a  question  of  fact,  and  cannot 
be  regarded  unless  its  omission  occasions  a  collision  producing  injury. 
Where  such  acts  are  not  required  by  statute,  their  omission  does  not 
raise  a  legal  inference  that  the  injury  resulted  from  a  want  of  their 
performance.    <?.  &  Ch.  U.  R.  R.  v.  Dill,  22  111.  264. 

1857.  In  an  action  against  a  railway  company  for  damages  result- 
ing from  a  failure  to  comply  with  the  requirements  of  the  statute 
relative  to  sounding  a  bell  or  whistle,  at  public  road  crossings,  an  in- 
struction that  such  omission  is  prima  facie  negligence,  is  proper.    In 
a.  &  Ch.  U.R.  R.  v.  Dill  the  statute  did  not  apply.    St.  L.,  J.  &  Ch. 
R.  R.  v.  Terhune,  50  111.  151. 

1858.  Whether  an  injury  was  the  result  of  the  omission  of  duty  is 
a  question  of  fact  for  the  jury.    C.  &  A.  R.  R.  v.  McDaniels,  63  111. 
122. 

1859.  Whether  the  failure  to  ring  a  bell  or  sound  a  whistle  on  ap- 
proaching a  highway  crossing  by  a  train  as  required  by  the  statute,  is 
the  cause  of  an  injury  sustained,  is  a  question  of  fact  for  the  jury.    /. 
C.  R.  R.  v.  Benton,  69  111.  174. 

1860.  The  failure  to  give  the  statutory  signals  on  approaching  a 
highway  crossing,  constitutes  &  prima  facie  case  of  negligence,  if  the 
injury  is  caused  by  it.    P.,  D.  &  E.  Ry.  v.  Foltz,  13  Bradw.  535. 

1861.  Where  the  statute  does  not  require  it,  an  omission  to  give  a 
signal  by  sounding  a  bell  or  whistle,  is  not  of  itself  evidence  of  negli- 
gence.    G.  &  C.  U.  R.  R.  v.  Dill,  22  111.  264. 

1862.  An  instruction  to  the  effect  that  if  the  defendants,  their 
servants  or  agents,  omitted  to  ring  a  bell  or  sound  a  whistle  m  the 


AND  EMINENT  DOMAIN.  231 

manner  required  by  law,  such  omission  constitutes  a,  prima  fa<Jie  case 
of  negligence,  and  defendants  are  liable  to  the  plaintiff  for  the  loss 
and  damage  proved  to  have  been  sustained  by  reason  of  such  negli- 
gence. Held,  proper.  C.  &  A.  R,  R.  v.  Elmore,  67  111.  176. 

1863.  In  an  action  for  killing  a  cow  at  a  road  crossing,  an  omission 
to  ring  a  bell  or  sound  a  whistle  while  at  a  distance  of  at  least  eighty 
rods  from  the  crossing,  constitutes  a  prima  fade  case  of  negligence 
in  the  company.    /.  C.  R.  R.  v.  Oillis,  68  111.  317 . 

1864.  The  mere  omission  of  a  railway  company  to  ring  a  bell  or  sound 
a  whistle  on  a  train  approaching  a  highway  crossing  where  a  collision 
occurs  with  a  team  while  crossing  the  railroad  track,  cannot  be  said 
as  a  matter  of  law,  to  be  evidence  of  gross  negligence,  so  as  to  fix  the 
liability  of  the  company  for  the  injury.     To  have  that  effect  it  must 
be  a  just  inference  from  the  evidence  that  the  injury  was  caused  by 
such  neglect.    C.,  B.  &  Q.  R.  R.  v.  Harwood,  90  111.  425. 

1865.  It  is  error  to  give  an  instruction  which  authorizes  a  recov- 
ery against  a  railway  company  upon  the  ground  of  negligence  in 
omitting  to  sound  a  whistle  or  ring  the  bell,  without  containing  a  re- 
quirement of  any  care  or  caution  on  the  part  of  the  person  injured. 
C.,  B.  &  Q.  R.  R.  v.  Harwood,  80  111.  88. 

1866.  Where  the  injury  is  alleged  to  be  the  result  of  negligence  in 
failing  to  ring  a  bell  or  sound  a  whistle  on  approaching  a  crossing,  and 
in  running  at  a  prohibited  rate  of  speed,  an  instruction  excluding 
from  the  consideration  of  the  jury  the  fact  whether  the  plaintiff  re- 
ceived his  injuries  in  consequence  of  such  neglect,  is  erroneous.     C., 
B.  &  Q.  R.  R.  v.  Dvorak,  1  Bradw.  555. 

1867.  The  bell  or  whistle  of  the  locomotive  should  be  sounded  at  a 
reasonable  distance  before  reaching  a  road  crossing.  If  stock  is  killed 
at  such  crossing  in  consequence  of  a  failure  to  give  such  warning  the 
company  will  be  liable.     Ch.  &  R.l.R.R.  v.  Reid,  24  111.  144. 

1868.  An  animal  was  run  over  and  killed  by  an  engine  at  a  road 
crossing,  a  place  where  the  statute  required  a  bell  to  be  rung  or  a 
whistle  to  be  sounded,  which  was  not  done,  and  the  jury  found  the 
injury  was  the  result  of  this  omission  of  duty:     Held,  that  the 
company  was  liable  to  the  owner  of  the  animal  for  its  value.    Gr. 
Western  R.  R.  v.  Geddes,  33  111.  304. 

1869.  In  an  action  against  a  railway  company,  the   court  in- 
structed the  jury  for  the  plaintiff,  that  if  he  was  injured  by  one  of 
defendant's  engines  at  a  street  crossing  in  a  city,  and  at  the  time  there 
was  no  bell  ringing  or  whistle  sounding  upon  such  engine,  they  should 
find  for  the  plaintiff,  unless  he  by  his  own  negligence  materially  con- 
tributed to  the  injury:  Held,  erroneous,  in  failing  to  leave  it  to  the 
jury  to  find  whether  the  injury  was  caused  by  such  omission.    C.,B. 
&Q.R.R.V.  NotzU,  66  111.  455. 

1870.  In  an  action  against  a  railway  company  for  injuries  received 
at  a  road  crossing  by  a  collision  with  plaintiff 's  team,  it  is  error  to  in- 
struct the  jury  to  find  the  defendant  guilty  of  negligence  from  the 
mere  fact  that  a  bell  was  not  rung  or  whistle  sounded  as  required  by 
law,  regardless  of  the  consideration  whether  the  failure  contributed 
to  the  accident  or  not.    T.,W .  &  W.  Ry.  v.  Jones,  76  111.  311. 

1871.  Where  a  railway  company  in  running  a  wild  train  on  ap- 
proaching a  highway  crossing  fails  to  give  the  statutory  signals  at  a 
place  where  the  view  of  an  approaching  train  is  obstructed  by  timber 
and  heavy  foliage,  this  will  establish  a  right  of  recovery  against  the 
company  for  an  injury  received  by  one  while  attempting  to  cross  the 
railroad  with  his  team,  in  favor  of  the  party  injured.    P., P.  &  J.  R. 
R.v.  Siltman,  88  111.  529. 


232  BAILROADS,  WAREHOUSES, 

1872.  Where  a  person  was  killed  in  attempting  to  cross  the  rail- 
road, and  it  appeared  the  company  allowed  the  view  along  its  track  to 
be  obstructed  by  a  house,  brush  and  weeds  upon  its  right  of  way,  and 
failed  to  give  the  statutory  signal  on  the  approaching  train  which  did 
the  killing,  until  it  was  too  late  to  avail,  and  the  train  was  running  at 
an  unusual  rate  of  speed  to  make  up  time  :  Held,  that  the  negligence 
of  the  company  was  gross,  and  even  if  the  deceased  was  guilty  of 
negligence  in  failing  to  listen  or  look  for  a  train  out  of  its  time,  it 
was  slight  and  the  company  was  liable.    C.,  B.  &  Q.  R.  R.  \.  Lee,  87  111. 
454. 

1873.  Where  a  railroad  is  so  constructed  that  the  place  where  it 
crosses  a  public  highway  is  unusually  dangerous  to  the  traveling  public, 
as  where  its  track  intersects  the  highway  in  a  cut,  and  is  approached 
on  the  road  by  a  descending  hill,  and  persons  approaching  the  cross- 
ing cannot  see  the  track  owing  to  brush,  bushes,  &c. :  Held,  that  a 
neglect  to  sound  a  bell  or  whistle  under  such  circumstances,  was  gross 
negligence .     I.  &  St.  L.  R.  R.\ .  Stables,  62  111.  313. 

1874.  Not  necessary,  signals  should  apprise  persons  of  danger. 
The  statute  requires  every  railway  corporation  to  cause  a  bell  of  at 
least  thirty  pounds  weight  to  be  rung,  or  a  eteam  whistle  to  be  sounded 
the  distance  of  at  least  eighty  rods  before  a  public  highway  is  reached 
by  a  train  or  locomotive,  and  kept  ringing  or  being  sounded  until  the 
highway  is  reached;  and  where  this  is  done,  the  company  has  dis- 
charged its  duty  imposed  by  the  statute,  whether  such  signal  is  heard 
or  not.    The  statute  does  not  require  the  giving  of  such  signal  of  the 
approach  of  a  train  as  to  enable  others  absolutely  to  ascertain  its  ap- 
proach and  avoid  being  injured.    C.,  B.  &  Q.  R.  R.v.  Dougherty,  110 
111.  521. 

1875.  If  a  railway  company  has  such  a  bell  on  an  engine  attached 
to  a  train  as  the  statute  requires,  and  it  is  rung  in  the  manner  re- 
quired, then  so  far  as  giving  signals  before  the  train  reaches  a  public 
highway  is  concerned,  the  company  will  be  without  blame,  whether 
the  signal  so  given'is  observed,  or  heeded,  or  not  by  one  attempting  to 
cross  the  railroad  track  on  the  public  highway.    Ib. 

1876.  .In  an  action  against  a  railway  company  for  a  personal  in- 
jury, the  court  instructed  that  it  was  the  duty  of  the  railway  company 
to  ring  a  bell  or  sound  a  whistle  at  a  distance  of  at  least  eighty  rods 
from  the  crossing  and  until  the  crossing  was  reached,  "  so  as  to  ap- 
prise persons  of"  the  approach  of  the  train:  Held,  erroneous,  as  re- 
quiring a  higher  duty  than  that  imposed  by  the  statute.    P.,  P.  &  J . 
R.  R.  v.  Siltman,  67  111.  72. 

1877.  In  a  similar  case  the  court  instructed  that  it  was  the  duty  of 
the  company  on  approaching  a  highway  on  a  common  level,  to  give 
"due  warning,"  so  that  a  person  traveling  on  the  highway  with  a  team 
and  carriage  might  stop  and  allow  the  train  to  pass:    Held,  erroneous, 
as  likely  to  induce  the  jury  to  believe  the  company  was  bound  to  do 
more  than  ring  a  bell  or  sound  a  whistle.    C.  &  A.  R.  R.  v.  Robinson, 
106  111.  142. 

1878.  A  railway  company  in  crossing  public  highway  must  so 
regulate  the  speed  of  its  trains  and  give  such  signals  to  persons 
passing  as  to  apprise  them  of  the  danger  of  crossing  the  track.    This, 
it  seems,  is  independent  of  the  statute.     C.  &  R.  I.  R.  R.  v.  Still,  19 
111.  499. 

1879.  DUTY  OF  RAILWAY  TO  AVOID  COLLISION.     Railway  com- 
panies in  crossing  public  highways  are  bound  to  so  regulate  the  speed 
of  their  trains,  and  to  give  such  signals  as  to  apprise  persons  of  their 
approach.     It  is  also  the  duty  of  those  having  charge  of  the  trains  to 
keep  a  lookout  so  as  to  avoid  injury  as  far  as  possible  to  persons 


AND  EMINENT  DOMAIN.  233 

exercising  their  legal  rights  in  traveling  upon  the  highway.    C.,  S.  & 
Q.  R.  R.  v.  Cauffman,  38  111.  424. 

1880.  Railway  companies  in  crossing  public  highways  must  so 
regulate  the  speed  of  their  trains,  and  give  such  signals  to  persons 
passing  as  to  apprise  them  of  the  clanger  of  crossing  the  track;  and  a 
failure  in  any  of  these  duties,  will  render  them  liable  for  injuries 
inflicted  and  for  wrongs  resulting  from  such  omissions.    R.,  R.  I.  & 
St.  L.  R.  R.  v.  Hillmer,  72  111.  235. 

1881.  Where  the  view  of  an  approaching  train  is  obstructed  by 
brush  it  is  the  duty  of  the  company  to  give  the  warning  of  its 
approach,  and  if  it  does  not,  it  will  be  liable  for  an  injury  to  one 
attempting  to  cross,  who  is  not  guilty  of  negligence.    Dimlck  v.  Ch. 
&  N.  W.  Ry.,  80  111.  338. 

1882 .  Circumstances  and  case  stated  in  which  it  was  held  that  a 
neglect  to  give  the  signals  on  approaching  a  street  crossing  was  gross 
negligence,  and  such  as  to  relieve  the  injured  party  from  the  charge 
of  negligence.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Dunn,  78  111.  197 . 

1883 .  Although  the  law  does  not  require  a  company  to  regulate 
its  speed  or  sound  a  bell  or  whistle  at  a  place  where  a  collision  occurs, 
yet  if  those  in  charge  of  a  train  have  reasonable  ground  to  believe 
there  is  danger  of  such  a  collision,  and  that  sounding  the  whistle  or 
slackening  of  the  speed  of  the  train  may  prevent  it  and  avoid  injury, 
the  company  will  be  held  guilty  of  negligence  in  not  giving  such 
signal,  &c.     /.  C.  R.  R.  v.  Modglin,  85  111.  481. 

1884.  The  court  is  not  disposed  to  relax  the  rule  as  to  the  duty  to 
give  warning  of  approaching  trains  by  a  continuous  ringing  of  the 
bell  or  sounding  of  a  whistle  for  the  distance  of  eighty  rods  before 
arriving  at  a  crossing,  and  the  willful  disregard  of  it  is  gross  negli- 
gence.   O.  &  M.  Ry.  v.  Eaves,  42  111.  288. 

1885.  A  railway  company  is  liable  for  killing  a  cow  on  its  track 
near  the  crossing  where  it  fails  to  give  the  warning.    T.,  W.  &  W.  Ry. 
v.  Furgusson,  42  111.  449. 

1886.  INJURY  NEAR  CROSSING.    Where  an  animal  is  killed  near  a 
street  crossing  by  a  train  running  through  an  incorporated  town,  if 
the  injury  occurs  before  the  train  reaches  the  street,  and  the  bell  or 
whistle  is  not  sounded,  the  company  will  be  liable  under  the  statute. 
T.,  P.  &  W.  Ry.  v.  Foster,  43  111.  415. 

1887.  If  the  injury  occurs  after  the  locomotive  has  passed  the  street 
and  at  a  place  where  the  statute  does  not  require  the  signal  to  be 
given,  in  that  case  it  is  a  question  for  the  jury  to  determine  whether 
or  not  an  omission  to  give  the  signal  amounts  to  such  negligence  as 
will  render  the  company  liable.    Ib. 

1888.  An  ordinance  requiring  the  stationing  of  flagmen  and  erec- 
tion of  bell  towers  at  street  crossings  of  railroads,  has  reference  to  the 
duties  of  the  owners  or  lessees  of  the  railroad  tracks,  and  cannot  be 
made  the  basis  of  liability  against  a  railway  company  not  owning  or 
leasing  the  track,  but  having  only  a  license  from  the  owner,    i.,  S.  & 
M.  S.  R.  R.  v.  Kaste,  11  Bradw.  536. 

DUTIES  IN  GENERAL  AT  HIGHWAY  CROSSINGS. 

1889.  It  is  due  to  the  public,  that  all,  either  persons  or  stock,  at  or 
near  a  road  crossing,  shall  be  warned  of  the  approach  of  a  train  of 
cars  by  the  bell  or  whistle.    C.,  R.  I.  &  P.  R.  R.  v.  Reid,  24  111.  144. 

1890.  A  railway  company  must  use  all  reasonable  means  to  prevent 
injury,  and  an  omission  to  do  so,  will  create  liability  unless  the  injured 


234  EAILBOADS,  WAREHOUSES, 

party  has  by  his  negligence  contributed  in  some  degree  to  the  injury. 
Great  Western  R.  R.  v.  Qeddis,  33  111.  304. 

1891.  While  a  railway  company  is  held  to  a  very  high  degree  of 
care  and  diligence  in  operating  its  road  through  the  streets  of  a  city, 
yet  the  care  and  caution  in  this  respect  are  required  to  be  exercised  in 
reference  to  the  proper  uses  of  the  streets  as  a  thoroughfare  for  travel, 
rather  than  to  the  safety  of  persons  in  wrongfully  getting  on  their 
cars.    C.,  S.  &  Q.  R.  R.  \.  Stumps.  55  111.  367. 

1892.  STOPPING  TRAIN.     Tt  is  not  the  duty  of  an  engineer  on 
nearing  a  public  road  crossing  to  stop  his  train  for  the  purpose  of 
avoiding  a  collision  with  a  wagon  and  team  he  may  see  approaching 
the  crossing.    He  has  the  right  to  presume  the  team  will  stop,  if  he 
gives  the  proper  signal.    St.  L.,A.&  T.  H.  R.  R.  v.  Manly,  58  111.  300. 

1893.  But  should  he  see  a  team  on  the  track  where  it  would  not  be 
likely  to  get  across  in  time,  he  should  use  every  means  in  his  power  to 
check  his  train  and  prevent  the  collision.    1  b . 

1894.  It  is  not  the  duty  of  the  engine-driver  on  nearing  a  road 
crossing  to  stop  his  train  for  the  purpose  of  avoiding  a  collision  with 
a  team  he  may  see  approaching  the  crossing.     C.,  B.  &  Q.  R.  R.  v. 
Damerell,  81  111.  450. 

1895.  The  law  has  not  made  it  the  duty  of  a  railway  company  to 
check  up  its  trains  on  discovering  a  person  approaching  a  crossing 
from  the  highway  with  a  team.    The  engine-driver  has  a  right  to  ex- 
pect he  will  stop  until  the  train  passes.    C.,  B.  &  Q.  R.  R.  v.  Lee,  68 
111.  576;  T.,  W.  &  W.  Ry.  v.  Jones,  76  111.  311. 

1896.  Where  an  employe  of  a  railway  company  while  in  charge  of 
a  hand-car  on  the  track  was  injured  by  a  collision  with  a  construction 
train,  and  it  appeared  he  knew  of  the  approach  of  the  train  in  time 
to  have  got  off  the  track  :  Held,  that  his  negligence  was  such  as  to 
preclude  a  recovery,  and  that  the  company  was  not  negligent  in  not 
sounding  a  whistle  and  slackening  the  speed  of  the  train,  as  its  ser- 
vants had  a  right  to  expect  the  hand-car  would  be  taken  from  the 
track  before  it  was  reached.    /.  C.  R.  R.  v.  Modylin,  85  111.  481. 

1897.  Not  bound  to  stop  a  train  because  a  person  is  ahead  walking 
near  the  track  nearly  parallel  with  it,  or  standing  near  the  track,  hav- 
ing reason  to  believe  such  person  will  keep  off  the  track.    C.,  R.  I.  & 
P.  R.  R.  v.  Austin,  69  111.  426. 

1898.  MUTUAL  RIGHTS  AT  CROSSING.     Railway  companies  have 
the  same  right  to  use  that  portion  of  the  public  highway  over  which 
their  track  passes  as  other  people  have  to  use  the  same.     This  right 
and  those  of  the  public,  as  to  the  use  of  the  highways  at  such  points 
of  intersection,  are  mutual,  co-extensive  and  reciprocal;  and  in  the 
exercise  of  such  rights,  all  parties  will  be  held  to  a  due  regard  to  the 
safety  of  others,  and  to  the  use  of  every  reasonable  effort  to  avoid  in- 
jury to  others . "    I.  &  St.  L.  R.  R.  v.  Stables,  62  111.  313. 

1899.  The  degree  of  diligence  and  care  required  of  railroad  com- 
panies, is  not  fixed  by  any  definite  and  precise  rule,  but  depends  rather 
upon  the  facts  and  circumstances  of  the  case,  so  that  what  would  be 
an  unnecessary  act  in  one  case,  would  be  imperatively  demanded  in 
another.    Ib. 

1900.  A  railway  company  has  no  better  right  to  cross  a  public 
highway  with  its  trains  at  the  intersection  with  its  road,  than  individ- 
uals have  to  cross  its  road  at  the  same  place.     This  right  is  mutual, 
co-extensive,  and  in  all  respects  reciprocal;  and  "in  the  exercise  of 
these  rights  all  parties  must  be  held  to  a  due  regard  for  the  safety  of 
others.     G.  &  Ch.  U.  R.  R.  v.  Dill,  22  111.  264. 

1901 .  While  it  is  true  the  traveler  has  the  same  right  to  cross  a 


AND  EMINENT  DOMAIN.  235 

railroad  at  its  intersection  with  a  highway  that  the  railway  com- 
pany has  to  cross  the  highway,  yet  each  in  so  crossing,  is  bound 
to  use  reasonable  care  and  effort  to  avoid  a  collision  or  inflicting 
an  injury  on  the  other,  or  in  receiving  injury  from  the  other.  If 
a  team  can  be  checked  on  seeing  the  approach  of  a  train  more  readily 
than  the  train,  it  should  be  so  checked  up.  I.  C.  R.  R.  v.  Benton,  69 
111.  174. 

1902.  Persons  traveling  along  a  highway  which  crosses  a  railroad 
track,  and  the  trains  of  the  railroad  company,  have  an  equal  right  to 
pass  over  the  crossing,  and  it  is  the  duty  of  both  to  use  reasonable 
and  prudent  precaution  to  avoid  accident  and  danger;  the  one  to  look 
out  foi  the  approach  of  trains,  and  the  other  to  give  the  required 
signals  and  warning  of  its  approach .     Ch.  &  N.   W.  Ry.  v.  Hatch, 
79111.137. 

PROOF   THAT   CROSSING   IS   OF   A   HIGHWAY. 

1903.  Proof  that  a  road  intersected  by  a  railroad  had  been  trav- 
eled by  the  public  and  worked  and  repaired  by  the  proper  authorities, 
is  sufficient  prima  fade  evidence  that  it  is  a  public  highway  to 
require  a  railway  company,  when  sued  for  neglect  to  sound  a  bell  or 
whistle  on  approaching  the  same,  to  show  that  it  is  not  a  legal 
highway.    /.  C.  R.  R.  v.  Senton,  69  111.  174.    See  also  C.  &  A.  R.  R.  v. 
Adler,  56  111.  344.  See  C.  &  A.  R.  R.  v.  Dillon,  —  111.  — .  Filed  Jan.  20, 
1888. 

EVIDENCE— AS  TO  OMISSION  OF  DUTY. 

1904.  WEIGHT— negative  and  affirmative.    Positive  evidence  that 
a  headlight  was  burning,  or  that  a  bell  or  whistle  was  sounding,  is  en- 
titled to  more  weight  than  negative  evidence  in  regard  to  such  facts. 
C.  &  R.  I.  R.  R.  v.  Still,  19  111.  499. 

1905.  As  to  what  is  negative  evidence,  and  its  comparative  weight 
in  value  see  Coughlin  v.  People,  18  111.  266;  Rockwood  v.Poundstone, 
38  111.  199;  C.,  B.  &  Q.  R.  R,  v.  Cauffman,  38  111.  424;  C.,  B.  &  Q.  R.  R. 
v.  Triplett,  38  111.  482;  Frizell  v.  Cole,  42  111.  362;  C.  &  A.  R.  R.  v.  Gretz- 
ner,  46  111.  74;  C.,  B.  &  Q.  R.  R.  v.  Stumps,  55  111.  367;  /.  C.  R.  R.  v. 
(Hllis,  68  111.  317;  R.,  R.  1.  &  St.  L.  R.  R.  v.  Hillmer,  72  111.  235;  Ch.,  D. 
&  V.  R  R  v.  Coyer,  79  111.  373;  C.,  B.  &  Q,R.  R.  v.  Lee,  87  111.  454;  C., 
B.&Q.  R.  R.\.  Dickson,  88  111.  431;  C.  &  A.  R.  R.  v.  Robinson,  106 
111.  142. 

1906.  NEGLIGENCE  OF  PLFF.  AS  A  DEFENSE— neglect  to  look.    It 
is  the  duty  of  a  person  about  to  cross  a  railroad  track  to  look  out  and 
listen  for  an  approaching  train.    If  he  fails  to  do  so  and  rushes  into 
danger  that  he  might  have  seen  and  avoided  by  ordinary  care,  he  can- 
not recover  for  any  injury  he  thereby  receives.    L.  8.  &  M.  8.  R.  R.  v. 
Clemens,  5  Bradw.  77;  C.  &  A.  R.  R.  v.  Robinson,  9  Bradw.  89;  C.,  B. 
&  Q.  R.  R.  v.  Cauffman,  38  111.  424;  C.  &  A.  R.  R.v.  Gretzner,  46  111.  74; 
C.,  R.  I.  &  P.  R.  R,  v.  Bell,  70  111.  102;  C.,  B.&Q.R.R.  v.  Damerell, 
81  111.  450;  L.  S.  &  M.  8.  R.  R.  v.  Hart,  87  111.  529;  Austin  v.  C.,  R.  I. 
&  P.  R.  R.,  91  111.  35. 

1907.  DUTY  TO  LOOK  IN  BOTH  DIRECTIONS.     It  is  culpable  or 
gross  negligence  to  cross  the  track  of  a  railroad  without  looking  in 
every  direction  in  which  the  rails  run  to  make  sure  that  the  road  is 
clear.     Garland  v.  Ch.  &  N.  W.  Ry,  8  Bradw.  571;  C.,  R.  I.  &  P.  R. 
R.  v.  Bell,  70  111.  102. 

1908.  This  rule  applies  with  increased  force  to  one  who  was  not 
lawfully  using  the  railroad  track,  but  passing  latterally  along  it,  not 
at  a  highway  crossing.    /.  C.  R.  R.  v.  Godfrey,  71  111.  500. 

1909.  It  is  incumbent  on  a  person  approaching  a  railway  crossing 


236  BAILROADS,  WAREHOUSES, 

to  exercise  care  and  caution  by  looking  and  listening  for  approaching 
trains .  A  failure  to  do  so  is  gross  negligence  and  bars  a  right  of  re- 
covery. 8t.  L.,  A.  &  T.  H.  R.  R.  v.  Pftugmacher,  9  Bradw.  300. 

1910.  It  is  the  duty  of  a  person  about  to  cross  a  railroad  track  to 
look  and  listen  for  approaching  trains;  and  the  neglect  of  this  duty  is 
such  gross  negligence  as  to  preclude  all  right  of  recovery  for  an  in- 
jury by  a  collision.      W.,  St.  L.  &  P.  Ry.  v.  Neikirk,  15  Bradw.  172; 
W.  St.  L.  &  P.Ry.  v.  Hicks,  13  Bradw.  407;  tf.  &  Ch.  U.  R.  R.  v.  Dill, 
22  111.  264;  C.  &  A.  R.  R.  v.  Gretzner,  46  111.  74;  T.,  P.  &  W.  Ry .  v. 
Riley,  47  111.  514;  C.  &  A.  R.  R.  v.  Jacobs,  63  111.  178;  C.,  B.  &  Q.  R. 
R.  v.  Harwood,8Q  111.  88. 

1911.  It  is  negligence  for  a  deaf  person  to. drive  an  unmanageable 
horse  across  a  railroad  track  where  a  train  is  approaching.    It  is  his 
duty  to  keep  a  good  look  out  and  avoid  the  danger.    /.  C.  R.  R.  v. 
Suckner,  28  111.  299. 

1912.  CARE  OF  ONE  COGNIZANT  OF  THE  DANGER.     It  is  the  duty 
of  a  person  about  to  go  upon  a  railroad  track  to  do  so  cautiously,  and 
to  ascertain  whether  there  is  danger,  especially,  if  from  long  employ- 
ment upon  the  road  at  the  particular  place,  he  is  familiar  with  its  pe- 
culiar dangers  from  the  numerous  tracks  there  and  their  constant  use 
in  the  switching  of  cars.    Ch.  &  N.  W.  Ry.  v.  Sweeney,  52  111.  325. 

1913.  Every  one  is  bound  to  know  that  a  railroad  crossing  is  a 
dangerous  place,  and  he  is  guilty  of  negligence,  unless  he  approaches 
it  as  if  it  were  dangerous.    C.  &  N.  W.  Ry.  v.  Hatch,  79  111.  137. 

1914.  If  a  person  drives  upon  a  crossing  which  he  knows  to  be 
dangerous,  without  looking  out  or  listening  to  ascertain  whether  a 
train  is  approaching,  and  is  struck  by  one,  he  is  guilty  of  such  negli- 
gence as  will  prevent  a  recovery  against  the  company,  unless  it  is 
guilty  of  gross  negligence.    Ib . 

1915.  It  is  not  the  exercise  of  ordinary  care  and  prudence  for  a 
person  to  drive  on  a  railroad  crossing,  known  to  him  to  be  dangerous, 
without  making  an  effort  to  ascertain  whether  a  train  is  approaching, 
or  whether  it  is  safe  to  drive  on  the  track  with  his  team.    Ib. 

1916.  EXCUSE  FOR  WANT  OF  CARE.    It  is  the  duty  of  a  person  ap- 
proaching a  railroad  crossing,  to  carefully  look  out  for  approaching 
trains,  although  the  signals  required  by  law  are  not  given ;  and  it  is 

fross  negligence  to  omit  this  precaution.    C.  &  A.  R.  R.  v.  Robinson, 
Bradw.  140. 

1917.  The  failure  to  ring  a  bell  or  sound  a  whistle,  or  to  clear  the 
track  of  obstructions  upon  it,  does  not  exempt  the  traveler  on  the 
highway  from  the  exercise  of  proper  care  on  his  part.    C.  &  A.  R.  R. 
v.  Robinson,  9  Bradw.  89. 

191&.  The  neglect  of  a  railway  company  to  give  proper  warning 
of  an  approaching  train  at  a  highway  crossing,  will  not  justify  a  per- 
son at  such  crossing,  from  omitting  any  proper  act  of  vigilance  to 
avoid  a  collision.  Ch.  &  R.  I:  R.  R.  v.  Still,  19  111.  499. 

1919.  There  is  nothing  that  can  relieve  a  person  from  the  duty  of 
using  due  care  and  caution  at  a  railroad  crossing  of  a  public  highway. 
It  is  error  to  instruct  that  if  the  train  was  behind  time,  this  excused 
the  plaintiff  from  using  the  same  care  and  caution  required  of  him, 
had  the  train  been  on  time.    T.,  W.  &  W.  Ry.  v.  Jones,  76  111.  311. 

1920.  Notwithstanding  the  neglect  to  give  the  statutory  signal 
before  approaching  a  road  crossing  with  a  train,  the  traveler  must 
exercise  prudence  and  caution;  but  without  such  warning  of  danger  his 
care  would  necessarily  be  less,  and  any  injury  to  him  under  such  cir- 
cumstances, must  naturally  be  attributed  in  a  great  degree  to  the  neg- 
ligence of  the  company.    C.  &  A.  R.  R.  v.  Elmore,  67  111.  176. 


AND  EMINENT  DOMAIN.  237 

1921.  The  fact  that  the  view  of  the  track  may  be  obstructed  by 
other  cars  left  standing  on  the  side  track,  does  not  lessen  the  caution 
required  of  a  person  attempting  to  cross  the  same,  but  imposes  upon 
him  the  duty  of  exercising  a  higher  degree  of  diligence.    Garland  v. 
Ch.  &  N.  W.  Ry.,  8  Bradw.  571. 

1922.  Where  a  person  on  approaching  a  railroad  crossing  with  a 
wagon  and  team,  does  not  avail  himself  of  his  sight  and  hearing, 
when  by  the  proper  exercise  thereof,  he  could  have  avoided  a  collision 
with  a  train  at  the  crossing,  he  will  be  regarded  as  grossly  negligent 
on  his  part,  and  cannot  recover  for  the  injury  resulting,  where  the 
only  neglect  of  the  company,  was  the  failure  to  give  the  required  sig- 
nal on  approaching  the  crossing.    St.  L.,  A.  &  T.  H.  R.  R.  v.  Manley, 
58  111.  300. 

1923 .  Where  a  person  knows  he  is  approaching  a  railroad  crossing, 
whether  in  a  city  or  elsewhere,  it  is  his  duty,  if  possible,  to  observe  the 
usual  and  proper  precautions,  by  looking  in  either  direction,  and 
watching  for  the  usual  signals  of  danger,  before  attempting  to  cross; 
and  when  it  appears  from  direct  testimony,  or  from  facts  and  circum- 
stances that  the  party  was  injured  from  a  want  of  these  precautions, 
he  cannot  recover,  however  serious  the  injury  he  may  receive.     C., 
B.  &  Q.  R.  R.  v.  Van  Patten,  64  111.  510. 

1924.  It  is  the  duty  of  a  person  coming  upon  a  railroad  crossing  of 
the  highway,  to  use  care  and  caution  to  avoid  a  collision  with  any 
passing  train,  and  to  use  precaution  before  going  thereon,  to  ascertain 
whether  there  is  a  train  approaching;  and  the  failure  to  ring  a  bell  or 
sound  the  whistle  does  not  exempt  travelers  on  highways  from  this 
duty.    C.,  B.  &Q.R.R.\.  Harwood,  80  111.  88. 

1925.  STOPPING  BEFORE  TRYING  TO  CROSS.   A  person  about  to 
cross  a  railroad  is  not  as  a  matter  of  law  required  to  stop  as  well  as 
to  look  and  listen  before  attempting  to  cross,  but  he  must  exercise  a 
degree  of  care  proportioned  to  the  danger,  and  whether  he  is  bound 
to  stop,  is  a  question  of  fact.    Garland  v.  Ch.&N.  W.  Ry.,  8  Bradw. 
571. 

1926 .  A  person  approaching  a  railroad  track  is  not  required  to  get 
out  of  his  buggy  and  go  to  the  track,  or  stand  up  in  order  to  get  a 
better  view.   This  would  be  to  require  extraordinary  care.    C.  B.  & 
Q.  R.  R.  v.  McGaha,  19  Bradw.  342. 

1927.  Where  the  plaintiff  carelessly  walked  upon  the  track  of  a 
railroad  a  few  steps  south  of  an  approaching  train,  without  looking 
north  to  see  if  there  was  danger,  and  paid  so  little  heed  as  not  to  hear 
the  bell  or  whistle  when  sounded,  or  notice  the  calls  of  persons  warn- 
ing him  of  danger,  and  was  run  over  by  the  engine  not  moving  at  a 
high  rate  of  speed,  and  there  was  no  proof  that  the  servants  of  the 
company  wantonly  or  willfully  caused  the  injury,  it  was  held  that  the 
plaintiff's  negligence  was  so  gross  as  to  preclude  a  recovery.    L.  8.  & 
M .  S.  R.  R.  v.  Hart,  87  111.  529. 

1928 .  Where  a  person  got  in  close  proximity  to  a  side  track  of 
a  railroad  and  was  walking  along  the  same,  where  he  was  struck  by 
a  yard  engine  and  killed,  and  it  appeared  that  he  was  well  acquainted 
with  the  locality,  and  placed  himself  in  this  dangerous  position  when 
the  approaching  engine  was  very  near  him,  without  looking  back  to 
see  if  any  engine  was  on  the  track,  and  that  the  engine  was  too  close 
to  him  when  he  got  near  the  track  to  be  stopped:    Held,  that  his 
negligence  was  so  great  as  to  preclude  any  recovery  against  the  com- 
pany.   Austin  v.  C.,R.  &  I.  P.  R.  R.,  91  111.  35. 

1929.  If  a  traveler  on  the  highway  had  notice  of  an  approaching 
train  in  time  to  avoid  a  collision,  the  object  of  giving  the  signal  is 
subserved,  and  the  failure  to  give  them,  or  either  of  them,  cannot  be 


238  EAILEOADS,  WAREHOUSES, 

held  to  be  the  cause  of  an  injury  resulting  from  a  collision  under 
such  circumstances.    C.,  R.  I.  &  P.  R.  R.  v.  Bell,  70  111.  102. 

1930.  WHERE  TRAVELER  is  WITHOUT  NEGLIGENCE.    Where  a 
person  in  a  buggy  stops  before  attempting  to  cross  a  railroad,  and 
looks  and  listens  for  an  approaching  train,  and  no  warning  is  given 
him  by  bell  or  whistle,  and  the  view  is  obstructed  by  brush,  &c.,  and 
he  is  injured  by  a  passing  train,  he  will  be  guilty  of  no  negligence, 
and  the  company  being  guilty  of  gross  negligence  will  be  liable .     C., 
B.  &  Q.  R.  R.  v.  McGaha,  19  Bradw.  342. 

1931.  Where  a  person  on  approaching  a  railroad  crossing  looks 
and  listens  for  an  approaching  train  before  passing  a  cornfield  which 
obstructed  the  view,  and  after  passing  the  same  again  looks  and 
listens,  and  no  warning  is  given  him  by  bell  or  whistle,  he  will  be 
guilty  of  no  negligence  on  his  part  in  going  upon  the  track,  and  the 
fact  that  he  is  told  to  stop,  that  the  cars  are  coming,  which  he  fails  to 
hear,  will  not  change  the  rule.     Dimick  v.  Ch.  &N.  W.  Ry.,  80  111. 
338. 

1932.  WALKING  ON  TRACK.    It  is  negligence  for  a  person  to  walk 
upon  the  track  of  a  railroad,  whether  laid  in  a  street,  or  an  open  field, 
and  he  who  deliberately  does  so,  will  be  presumed  to  assume  the  risk 
of  the  peril  he  may  encounter.     I.  C.  R.  R.  \.  Hall,  72  111.  222. 

1933.  A  higher  degree  of  care  and  caution  will  be  required  of  a 
person  who  is  without  right  traveling  on  foot  along  a  railroad  track 
than  of  a  traveler  crossing  the  track  upon  a  highway.    L., S.  &  M.  S. 
R.R.  v.  Hart,81Ill.  529. 

1934.  A  person  crossing  a  railroad  track  who  could  have  seen  the 
cars  approaching,  but  turned  his  back  to  that  direction,  and  had  his 
ears  so  bandaged  that  he  could  not  hear,  is  guilty  of  such  negligence 
as  will  prevent  his  recovery  for  injuries,  unless  he  can  prove  a  greater 
degree  of  negligence  on  the  part  of  the  railway  company.     Ch.  &  R. 
I.  R.  JR.  v.  Still,  19  111.  499. 

1935.  The  plaintiff  to  recover  for  an  injury  resulting  from  a  fail- 
ure to  give  the  statutory  signal,  must  have  exercised  such  care  as 
might  be  expected  of  prudent  men  generally  under  like  circumstances. 
Overruling  C.  &  A.  R.  R.  v.  Elmore,  67  111.  176;    W.,  St.  L.  &  P.  Ry.  v. 
Wallace,  110  111.  114. 

CONTRIBUTORY  NEGLIGENCE  GENERALLY. 

1936.  WHEN  NEGLIGENCE  OF  A  PLAINTIFF    is  A  BAR  —  gross 
negligence  of  plaintiff.     If  the  plaintiff  has  been  guilty  of  gross 
negligence  contributing  to  his  injury  he  cannot  recover.     C.,  R.  I.  & 
P.  R.  R.  v.  Dingman,  1  B.  162;  L.  8.  &  M.  S.  R.  R.  v.  Sunderland,  2 
B.  307;  L.  S.&  M.  S.  R.  R.  v.  Roy,  5  B.  82;  President,  &c.,  v.  Car- 
ter,  6B.421;  C.,B.&Q.R.R.  v.  Olson,  12  Brw.  245;  P.,C.  &St.  L. 
Ry.v.  Goss,  13  Brad.  619;  L.S.&M.  S.  R.R.\.  Hunt,  18  B.  288. 

1937.  If  the  plaintiff  fails  to  use  ordinary  care  and  this  contrib- 
utes to  his  injury,  he  cannot  recover  for  mere  negligence  on  the  part 
of  the  defendant.    President,  &c.,v.  Carter,  2  B.  34. 

1938.  To  recover  for  an  injury  from  a  defective  sidewalk,  the 
plaintiff  must  have  exercised  ordinary  care  to  avoid  the  injury.    Chi- 
cago v.  Watson,  6  B.  344;  Macomb  v.  Smithers,  6  B.  470. 

1939.  One  who  knowingly  exposes  himself  to  danger  which  could 
readily  have  been  avoided  must  attribute  his  injury  to  his  own  negli- 
gence.    Bloomington  v.  Read,  2  B.  542. 

1940.  A  plaintiff  injured  by  his  own  negligence  and  not  that  of 
the  defendant,  cannot  recover.    U.  Ry.  &  T.  Co.  v.  Leahey,  9  13.  353; 
Armour  v.  McFadden,  9  B.  508. 


AND  EMINENT  DOMAIN.  239 

1941.  Plaintiff  must  show  that  his  own  negligence  or  misconduct 
has  not  concurred  in  producing  the  injury.    Aurora  Branch  R.  R.  v. 
arimes,  13  111.  585. 

1942.  Where  the  plaintiff  is  in  the  wrong,  or  not  in  the  exercise  of 
a  legal  right,  or  is  enjoying  a  favor  or  privilege  without  compensation, 
he  must  use  extraordinary  care,  before  he  can  complain  of  negligence 
in  another.     C.&  A.R.R.  v.  McKenna,  14  B.  472;  /.  C.R.R.v.  God- 
frey, 71  111.  500. 

1943.  One  may  go  upon  a  sidewalk  known  to  be  out  of  repair  and 
dangerous,  and  if  injured,  may  recover,  if  ordinary  and  reasonable 
care  is  used.    Joliet  v.  Conway,  17  Bradw.  577. 

1944.  Where  the  gravamen  of  the  action  is  mere  negligence  there 
can  be  no  recovery,  where  there  is  a  want  of  ordinary  care  by  the 
plaintiff  to  avoid  the  injury.    C.,  B.  &  Q.  R.  R.  v.  Rogers,  17  B.  638. 

1945.  To  entitle  a  plaintiff  to  recover  for  injury  from  negligence, 
there  must  have  been  no  want  of  ordinary  care  on  his  part.     W.,  St. 
L.  &  P.  Ry.  v.  Moran,  13  B.  72;  C.,B.&  Q.  R.  R.  v. Rogers,  11  B.  638; 
C.,  B.&  Q.  R.  R,  v.  Dougherty,  12  B.  181;  C\,  B.  &  Q.  R.  R.  v.Colwell,  3 
B.  545;  GarfieldManf.  Co.  v.  McLean,  18  B.447;  Gardners.  C.,  R.  I.  & 
P.  R.  R.,  17  B.  262;  Dyer  v.  Talcott,  16  111.  300;  G.  &  C.  U.  R.  R.  v.Fay, 
16  111.  558;  C.,  B.  &  Q.  R.R.  v.  Van  Patten,  64  111.  516,  517. 

1946.  If  the  injured  party  alone  is  in  fault  and  the  accident  is  the 
result  of  his  own  negligence,  he  cannot  recover.    St.  L.,  A.&T.H.R. 
R.  v.  Manly,  58  111.  300,  306. 

1947.  If  the  plaintiff's  negligence  is  the  primary  cause  of  the  in- 
jury, and  the  defendant  is  guilty  of  no  want  of  ordinary  care,  no 
recovery  can  be  had.    R.,  R.  I.  &  St.  L.R.R.  v.  Coultas,  67  111.  398, 401. 

1948.  Where  both  parties  are  equally  in  the  position  of  right,  the 
plaintiff  is  only  bound  to  show  that  his  injury  was  produced  by  the 
negligence  of  the  defendant,  and  that  he  exercised  ordinary  care  and 
diligence  to  avoid  it.    /.  C.  R.  R.  v.  Godfrey,  71  111.  500. 

1949.  Although  the  defendant's  negligence  may  have  been  the 
prime  cause  of  the  injury,  yet  if  the  plaintiff  by  the  exercise  of  due 
care,  might  have  avoided  the  injury,  and  his  negligence  is  slight  and 
that  of  the  defendant  gross,  when  compared,  the  plaintiff  cannot  re- 
cover.   St.L.&S.JE.  Ry.  v.  Britz,  72  111.  256 . 

1950.  There  must  be  fault  on  the  part  of  the  defendant  and  no  want 
of  ordinary  care  on  the  part  of  the  plaintiff,  to  entitle  him  to  recover . 
G.  T.,  M.  &  T.  Co.  v.  Hawkins,  72  111.  386,  388. 

1951.  Although  there  may  be  negligence  on  the  part  of  the  defend- 
ant, yet  if  there  is  also  negligence  on  the  part  of  the  plaintiff,  but  for 
which  the  injury  would  not  have  been  received,  or  if  the  plaintiff  by 
the  exercise  of  ordinary  care  and  caution,  could  have  avoided  the  in- 
jury and  he  failed  to  exercise  it,  he  cannot  recover.    Exceptions  to 
rule  stated.    C.  &  A.  R.  R.  v.  Becker,  76  111.  25. 

1952.  The  negligence  of  a  parent  will  not  excuse  the  carrier  by  rail 
from  using  all  the  means  in  its  power  to  prevent  injury  to  °the  child. 
But  where  the  negligence  of  the  parent  is  the  proximate  cause  of  the 
injury,  the  carrier  will  not  be  responsible,  unless  it  omits  duties  which 
might  have  averted  the  injury.     0.  &  M.  Ry.  v.  Stratton,  78  111.  88. 

1953.  A  party  driving  upon  a  railroad  track  without  looking  out 
for  an  approaching  train,  is  guilty  of  such  gross  negligence  as  to  bar 
his  action,  unless  the  company  is  guilty  of  gross  negligence.     Ch.  & 
N.  W.  Ry.  v.  Hatch,  79  111.  137. 

1954.  Except  where  the  injury  has  been  willfully  or  wantonly  in- 
flicted, it  is  an  essential  element  to  a  right  of  recovery  that  the  plain- 


240  EAILROADS,  WAREHOUSES, 

tiff  or  person  injured,  must  halve  exercised  ordinary  care  to  avert  the 
injury.    Litchfleld  Coal  Co.v.  Taylor,  81  111.  590.       • 

1955.  It  is  a  requisite  to  the  liability  of  a  railway  company  as  a 
passenger  carrier,  that  the  passenger  shall  not  have  been  guilty  of  any 
want  of  ordinary  care  and  prudence  which  directly  contributed  to  the 
injury.    /.  C.  R.  R.  v.  Green,  81  111.  19. 

1956.  The  negligence  of  a  plaintiff  which  will  prevent  a  recovery 
for  an  injury  resulting  from  the  defendant's  negligence,  must  be  such 
as  contributes  to  the  injury.    /.  &  St.  L.  R.  R.  v.  Herndon,  81  111.  143. 

1957.  Before  a  recovery  can  be  had  by  a  party  falling  into  an  exca- 
vation in  a  sidewalk,  not  properly  protected,  he  must  show  he  used 
due  care  for  his  safety.    Kepperly  v.  Ramsden,  83  111.  354. 

1968.  If  a  passenger  on  a  train  without  the  direction  of  the  com- 
pany's servant  leaves  his  seat  in  a  passenger  coach  arid  goes  into  a 
baggage  car,  where  he  is  killed,  he  will  be  guilty  of  such  a  high  degree 
of  negligence  as  to  defeat  a  recovery  by  his  personal  representative 
against  the  company,  unless  the  latter  is  guilty  of  wanton  or  reckless 
misconduct.  P.  &  R.  I.  R.  R.  v.  Lane,  83  111.  448. 

1959.  If  the  conduct  of  one  killed  while  walking  upon  a  railroad 
track  amounts  to  gross  negligence,  no  recovery  can  b«  had  of  the  com- 
pany, unless  it  was  guilty  of  willful  or  criminal  negligence.    /.  C.  R. 
R.  v.  Hetherington,  83  111.  510. 

1960.  Where  the  plaintiff  is  guilty  of  gross  negligence,  he  cannot 
recover  unless  the  injury  was  wantonly  or  willfully  caused.    L.  8.  & 
M.  S.  R.  R.  v.  Hart,  87  111.  529. 

1961.  Walking  upon  a  railroad  track  without  looking  in  Doth  direc- 
tions to  see  if  a  train  is  approaching,  when  such  precaution  would 
have  discovered  the  same,  is  such  negligence  as  to  bar  a  recovery,  un- 
less the  injury  be  willfully  or  wantonly  inflicted.    Austin  v.  C.,  R.  I. 
&  P.  R.  R.,  91  111.  35. 

1962.  If  it  appears  that  the  plaintiff  was  himself  guilty  of  gross 
negligence  in  respect  to  the  injury  complained  of,  he  cannot  recover. 
C.  &  N,  W.  Ry.  v.  Dimick,  96  111.  42. 

1963.  Gross  negligence  of  the  plaintiff  contributing  to  the  injury, 
is  a  bar  to  a  recovery.    C.  &  N.  W.  Ry.  v.  Scdtes,  90  111.,  586;  /.  C.  R. 
R.  v.  Patterson,  93  111.  290;  C.,  B.&  Q.  R.  R.  v.  Warner,  108  111.  538; 
Simmons  Y.  Ch.  &  Tomah  R.  R.,  110  111.  340;  Abend  v.  T.  H.  &  I.  R.  R., 
Ill  111.  202;  C.  &  N.  W.  Ry.  v.  Snyder,  117  111.  376;  Penn  v.  Hankey,W 
111.  580. 

1964.  In  the  absence  of  ordinary  care  on  the  part  of  the  plaintiff, 
he  cannot  recover  for  an  injury  caused  by  mere  negligence,  as  distin- 
guished from  the  willful  tort  of  the  defendant.    C.,  B.  &  Q.  R.  R.  v. 
Johnson,  103  111.  512. 

1965.  A  plaintiff  cannot  recover  for  an  injury  caused  even  in  part 
by  his  own  fault  in  failing  to  use  ordinary  care  in  being  treated  and 
cured  of  his  injuries.    Pullman  Palace  Car  Co.  v.  Blulim,  109  111.  20. 

1966.  A  person  who  voluntarily  and  unnecessarily  places  himself 
in  a  well  known  place  of  danger,  but  for  which  he  would  not  have 
been  injured,  and  he  is  injured  or  killed  in  consequence  of  Mich  expo- 
sure, even  through  the  gross  negligence  of  the  defendant,  if  the  act 
of  the  latter  was  not  wanton  or  willful,  is  guilty  of  such  contributory 
negligence  as  to  preclude  a  recovery.    Abend  v.  T.  H.  &  2.  R.  #.,111 
111.202. 

1967.  If  a  party's  negligence  materially  contributes  to  the  injury, 
whether  it  contributes  to  the  injury  or  to  the  force  causing  the  injury, 
or  not,  it  will  bar  a  recovery.    Ib. 


AND  EMINENT  DOMAIN.  241 

1968 .  Where  the  person  killed,  by  the  use  of  ordinary  care,  could 
have  avoided  the  injury,  and  he  failed  to  do  so,  no  recovery  can  be 
had.    Myers  v.  /.  &  St.  L.  R.R.,  113  111.  386. 

1969.  Ill  order  to  recover  for  injury  from  negligence,  it  must  be 
shown  thai  the  injured  party  was  at  the  time  he  was  injured,  observ- 
ing due  or  ordinary  care  for  his  safety,  and  that  while  exercising  such 
care,  he  was  injured  by  the  negligence  of  the  defendant.    Calumet 
Iron  &  Steel  Co.  v.  Martin,  115  111.  358. 

1970.  Allowing  a  child  three  years  old  to  go  upon  the  streets,  is 
not  such  negligence  as  to  bar  a  recovery  for  an  injury  to  the  child. 
Stafford  v.  Rubens,  115  111.  196;  Chicago  v.  Hewing,  83  111.  204. 

OF  MUTUAL  AND  COMPARATIVE  NEGLIGENCE. 

1971.  It  has  never  been  held  by  our  courts  that  the  negligence  of 
the  parties  can  be  weighed  in  a  scale,  and  if  inclined  in  favor  of  the 
plaintiff,  that  he  may  recover.    President,  &c.  v.  Carter,  2  B.  34 . 

1972.  Where  the  plaintiff's  slight  negligence  has  contributed  to  the 
injury,  he  cannot  recover,  unless  the  defendant's  negligence  was  gross 
in  comparison  with  his  own.    C.  &A.  R.  R.  v.  Langley,  2  B.  505;  L.  S. 
&  M.  S.  R.  R.  v.  Berlin*,,  2  B.  427. 

1973.  Where  the  plaintiff's  own  act  contributed  to  the  injury,  he 
cannot  recover,  unless  his  negligence  was  slight  and  that  of  defendant 
gross  in  comparison.    /.  C.  R.  R.  v.  Brookshire,  3  B.  225. 

1974.  If  the  negligence  of  the  injured  party  was  only  slight,  and 
that  of  the  defendant  in  comparison  amounts  to  gross  carelessness,  the 
plaintiff  may  recover;  but  if  the  person  injured  was  guilty  of  gross 
negligence,  no  recovery  can  be  had,  unless  the  negligence  of  the  defend- 
ant was  so  gross  as  to  amount  to  a  wanton  or  willful  wrong.    C.,  B. 
&  Q.  R.  R.  v.  Colwell,  3  B.  545. 

1975.  A  plaintiff  guilty  of  slight  negligence  may  recover  of  a 
defendant  guilty  of  gross  negligence;  but  it  is  not  enough  that  the 
negligence  of  the  defendant  should  be  greater  than  that  of  the  plain- 
tiff, or  that  any  degree  of  disparity  between  the  two  should  exist  less 
than  that  which  is  expressed  by  the  terms  slight  and  gross.    N.  Ch. 
Rotting  Mitts  Co.  v.  Monka,  4  B.  664. 

1976.  Where  both  parties  are  guilty  of  negligence,  the  plaintiff  can- 
not recover  unless  that  of  the  defendant  is  gross  arid  that  of  the  plain- 
tiff slight  in  comparison.    Ch.  City  Ry.  v.  Lewis,  5  B.  242;  Winchester 
v.  Case,  5  B.  486;  Glover  v.  Gray,  9  B.  329. 

1977.  Rule  of  comparative  negligence  applies  in  the  use  of  a  tumb- 
ling rod.     W.,  St.  L.  &  P.  Ry.  v.  Thompson,  10  B.  271 . 

1978.  The  law  of  contributory  negligence  does  not  authorize  the 
jury  to  weigh  the  degrees  of  negligence  and  find  for  the  party  least  in 
fault .     Wabash  Ry .  v.  Jones,  5  B.  607. 

1979.  A  plaintiff  guilty  of  negligence  contributing  in  a  slight  de- 
gree to  the  injury,  may  recover  of  a  defendant  who  has  been  guilty  of 
gross  negligence,  if  the  negligence  of  the  plaintiff  is  slight  and  that  of 
the  defendant  gross  in  comparison;  and  both  the  terms  gross  and 
slight,  or  their  equivalent,  should  be  used  in  the  instructions.    C.,  B. 
&  Q.  R.  R.  v.  Avery,  8  B.  133. 

1980.  If  the  plaintiff  has  exercised  ordinary  care,  and  the  defend- 
ant was  negligent,  though  not  to  the  extent  of  being  grossly  so,  the 
plaintiff  may  recover,  although  his  care  was  not  of  that  extreme  de- 
gree denominated  great  care.    C.,  B.  &  Q.R.R.  v.  Dougherty,  12  B.  181. 

1981.  A  plaintiff  who  by  want  of  ordinary  care  has  contributed  to 
the  injury,  cannot  recover,  no  matter  what  may  have  been  the  degree 


242  KAILEOADS,  WAREHOUSES, 

of  the  defendant's  negligence,  provided  it  does  not  amount  to  a  willful 
and  intentional  wrong.  C.,  B.  &  Q.  R.R.v.  Dougherty,  12  B.  181; 
Union  Ry.  &  T.  v.  Kallaher,  12  B.  400. 

1982.  The  element  of  comparison  is  as  indispensable  t»  a  proper 
statement  of  the  rule  of  comparative  negligence  as  are  the'degrees  of 
the  negligence  of  the  respective  parties;  and  an  instruction  which 
fails  to  institute  a  comparison,  is  erroneous.    C.  &  E.  I.  R.  R.  v. 
O'Connor,  13  B.  62. 

1983.  A  plaintiff  guilty  of  negligence  contributing  to  the  injury 
may  recover,  if  his  negligence  is  slight  and  that  of  the  defendant  gross 
in  comparison.     But  there  must  be  no  want  of  ordinary  care  on  his 
part.     W.,  St.  L.&P.  Ry.  v.  Moran,  13  B.  72. 

1984.  If  the  negligence  of  the  plaintiff  is  slight  and  that  of  the 
defendant  gross,  and  it  so  appears  when  compared  with  each  other, 
the  plaintiff  may  recover.    First  Nat.  Bank  v.  Eitemiller,  14  B.  22. 

1985.  Before  the  plaintiff  can  recover  it  must  appear  that  his  own 
negligence  was  no  greater  than  that  denned  by  the  law  as  slight,  and 
that  the  defendant  was  guilty  of  gross  negligence.    St .  L.,A.  &  T.  H.  R. 
R.v.Andres,  16  B.  292. 

1986.  Before  the  rule  of  comparative  negligence  can  have  any 
application  it  must  appear  that  the  plaintiff  exercised  ordinary  care 
and  that  the  defendant  was  guilty  of  gross  negligence.    Gardner  v. 
C.,  R.  I.  &  P.  Ry.  17  B.  262. 

1987.  An  instruction  which  requires  the  jury  to  find  whether  the 
negligence  of  the  plaintiff  was  slight  and  that  of  defendant  gross,  but 
does  not  require  the  jury  to  compare  the  negligence  of  the  parties,  and 
determine  from  such  comparison  whether  the  one  is  slight  and  the 
other  gross,  is  erroneous.    C.  &  A.  R.  R.  v.  Dillon,  17  B.  355. 

1988.  The  rule  of  comparative  negligence  has  no  application,  and 
cannot  be  invoked,  except  in  cases  where  the  party  injured  observed 
ordinary  care  with  reference  to  the  circumstances  involved,  for  his 
safety.    Garfield  Manf.  Co.  v.  McLean,  18  B.  447. 

1989.  If  the  plaintiff  was  alone  in  fault,  or  if  both  parties  were 
equally  in  fault,  the  plaintiff  cannot  recover.    Aurora  Branch  R.  R. 
v.  Grimes,  13  111.  585,  591. 

1990.  A  person  guilty  of  negligence  in  attempting  to  cross  a  rail- 
road track  cannot  recover  for  an  injury,  unless  the  company  has  been 
guilty  of  negligence  or  misconduct  still  more  gross  and  willful  than 
his  own.     C.  &  R.  I.  R.  R.  v.  Still,  19  111.  499. 

1991.  The  plaintiff's  negligence  must  be,  as  compared  with  that  of 
the  defendant,  so  much  less  culpable  as  to  incline  the  balance  in  his 
favor,  both  being  in  some  fault.    Peoria  Bridge  Assoc.  v.  Loomis,  20 
111.  235,  251. 

1992.  If  the  negligence  of  the  plaintiff  is  only  slight  and  that  of 
the  defendant  is  gross,  a  recovery  may  be  had.    C.,  B.  &  Q.  R.  R.  v. 
Dewey,  26  111.  255,  258. 

1993.  The  degrees  of  negligence  of  the  parties  may  be  measured, 
and  if  that  of  the  plaintiff  is  comparatively  slight  and  that  of  the 
defendant  gross,  a  recovery  may  be  had.    G.  &  C.  U.  R.  R.  v.  Jacobs,  20 
111.  478;  C.  B.  &  Q.  R.  R.  v.  Hazzard,  26  111.  373,  387. 

1994.  A  plaintiff  whose  negligence  has  contributed  to  the  injury, 
may  recover,  if  the  defendant  has  been  guilty  of  a  higher  degree  of 
negligence  amounting  to  willful  injury.    St.  L..  A.  &  T.  H.  R.  R.  v. 
Todd,  36  111.  409,  414. 

1995.  Although  the  plaintiff  may  be  chargeable  with  some  degree 
of  negligence,  yet  if  it  is  but  slight  as  compared  with  that  of  the  de- 


AND  EMINENT  DOMAIN.  243 

fendant,  the  plaintiff  may  recover,  even  where  the  slight  degree  of 
negligence  to  some  extent  contributed  to  the  injury.  Coursenv.  Ely, 
37  111.  338;  G.  &  A.  R.  R.  v.  Hogarth,  38  111.  370;  C.,  B.  &  Q.R.R,v. 
Cauffman,  38  111.  424;  C'.,  B.  &  Q.  R.  R.  v.  Triplett,  38  111.  482. 

1996.  If  the  owner  of  property  burned  by  the  emission  of  sparks 
from  an  engine  is  guilty  of  negligence  in  failing  to  take  proper  pre- 
cautions to  protect  the  same  from  tire,  he  cannot  recover  of  the  rail- 
way company  for  its  destruction,  unless  the  negligence  of  the  latter  is 
more  gross  than  his  own.    Great   Western  R.  R.  v.  Haworth,  39,  111. 
346. 

1997.  Railway  company  not  liable  for  killing  stock,  if  the  owner 
has  been  guilty  of  negligence  contributing  to  the  injury,  unless  the 
company  has  been  guilty  of  negligence  more  gross  than  that  of  the 
plaintiff.    The  jury  in  such  a  case  may  compare  the  degrees  of  negli- 
gence.   I.  C.  R,  R.  \.Middlesworth,  43  111.  64. 

1998.  If  the  owner  of  stock  killed  by  a  train  of  cars,  while  crossing 
the  track  is  guilty  of  as  great  negligence  as  the  company,  no  recovery 
can  be  had  for  an  injury.    0.  &  M.  R.  R.  v.  Eaves,  42  111.  288. 

1999.  To  recover,  the  plaintiff  must  show  that  the  injury  resulted 
from  the  negligence,  of  the  defendant,  and  not  from  any  fault  on  his 
part  which  materially  contributed  to  it;  or,  if  not  wholly  free  from 
fault  himself,  that  his  negligence  was  slight  in  comparison  with  that 
of  the  defendant.    Ortmayer  v.  Johnson,  45  111.  469;  C.  &  A.  R.  R.  v. 
Gretzner,  46  111.  74. 

2000.  When  both  parties  are  at  fault  the  plaintiff  may  in  some 
cases  recover,  as  where  his  negligence  is  slight  and  that  of  the  defend- 
ant is  gross.    C.  &  A.R.R.  v.  Gretzner,  46  111.  74. 

2001.  This  rule  holds  good  even  where  the  plaintiff's  slight  negli- 
gence in  some  degree  contributed  to  the  injury.    If  the  defendant  has 
been  guilty  of  a  higher  degree  of  negligence,  slight  negligence  of  the 
plaintiff  will  not  absolve  the  defendant  from  the  use  of  all  reasonable 
efforts  to  avoid  the  injury.    Ib. 

2002.  Negligence  on  the  part  of  the  owner  of  mules  in  penning 
them  alongside  of  a  railway  fence  of  the  right  of  way,  over  which  they 
broke  and  got  upon  the  track,  where  they  were  killed,  will  not  defeat 
his  right  to  recover  for  the  injury,  where  the  exercise  of  ordinary  care 
by  the  company  might  have  prevented  the  in j ury .    I.C.R.R.  v.  M id- 
dlesworth,  46  111.  494. 

2003 .  Unless  the  negligence  of  a  railway  company  in  suffering 
weeds  and  grass  to  accumulate  on  its  right  of  way  is  greater  than  that 
of  the  adjoining  land  owner-in  the  same  respect,  the  latter  cannot 
recover  for  an  injury  by  fire  communicated  from  an  engine.    0.  &  M. 
R.  R.  v.  Shanefelt,  47  111.  497;  /.  C.  R.  R.  v.  Frazler,.±l  111.  505;  Ch.  & 
N.  W.  Ry.  v.  Simonson,  54  111.  504. 

2004.  In  case  of  mutual  negligence  that  of  the  defendant  must  be 
so  much  greater  than  that  of  the  plaintiff  as  to  clearly  predominate,  to 
authorize  a  recovery.    C'.,  B.  &  Q.  R.  R.  v.  Payne,  49  111.  499.    (Over- 
ruled.) 

2005.  For  an  injury  received  in  getting  off  a  steamboat,  the  plain- 
tiff, if  guilty  of  negligence,  cannot  recover,  unless  that  of  the  defend- 
ant was  much  greater.    Keokuk  Packet  Co.  v.  Henry,  50  111.  264. 

2006.  Where  the  degree  of  negligence  of  the  plaintiff  is  slight  as 
compared  with  that  of  the  defendant  contributing  to  the  injury,  he 
may  recover .     C.  &  A .  R .  R .  \  .  Pondrom,  51  111.  333 . 

2007.  The  negligence  of  a  passenger  in  resting  his  arm  on  a  car 
window  with  his  elbow  slightly  projecting  out,  is  slight  as  compared 
with  that  of  the  company  in  permitting  its  freight  cars  to  stand  so 


244  BAILKOADS,  WAREHOUSES, 

near  the  passenger  track  as  to  injure  the  arm  of  the  passenger,  and  a 
recovery  may  be  had.     Ib. 

2008.  Liability  for  a  personal  injury  does  not  depend  upon  the 
absence  of  all  negligence  on  the  part  of  the  plaintiff  or  defendant,  but 
upon  the  relative  degree  of  care,  or  want  of  care  as  manifested  by 
both  parties.     C.&N.  W.  Ry.  v.  Sweeney,  52  111.  325. 

2009.  In  an  action  for  personal  injury  caused  by  the  negligence  of 
the  defendant,  the  plaintiff  cannot  recover,  if  he  has  been  guilty  of 
contributory  negligence,  unless  it  is  far  less  in  degree  than  that  of  the 
defendant.    C.,  B  &  Q.  R.  R.  v.  Dunn,  52  111.  451 . 

2010.  Where  the  negligence  of  the  defendant  in  placing  and  leaving 
obstructions  upon  a  sidewalk,  is  much  greater  than  that  of  a  twelve 
year  old  boy,  who  is  injured  thereby,  the  father  of  such  boy  may 
recover  for  expenses  incurred  and  loss  of  services.    Kerr  v.  Forgue, 
54  111.  482. 

2011.  If  the  negligence  of  a  plaintiff  is  slight  in  failing  to  keep  his 
horses  up  and  in  his  efforts  to  find  them  after  their  escape,  and  that  of 
a  railway  company  is  gross  in  permitting  a  gate  in  its  fence  to  stand 
open  a  long  time,  whereby  the  horses  are  injured  on  its  track,  the 
plaintiff  may  recover.    C.  &  N.  W.  Ry.  v.  Harris,  54  111.  528. 

2012.  Where  stock  are  killed  upon  a  railway  track  and  the  injury 
plight  have  been  avoided  by  ordinary  care  on  the  part  of  the  company, 
it  will  be  liable,  even  though  the  stock  were  upon  the  track  without 
the  fault  of  the  company.    C.  &  N.  W.  Ry.  v.  Barrie,  55  111.  226. 

2013.  Although  a  person  killed  by  a  train  of  cars  may  have  been 
guilty  of  some  negligence  contributing  to  the  injury,  yet  if  the  com- 
pany was  guilty  of  a  higher  degree  of  negligence,  with  which,  when 
compared,  that  of  the  deceased  is  slight,  or  greatly  disproportionate, 
his  personal  representative  may  recover.    /.  C.  R.  R.  v.  Baches,  55 
111.  379. 

2014.  Where  the  person  killed  and  the  servants  of  the  company  are 
both  guilty  of  gross  negligence  contributing  to  the  injury,  no  recovery 
can  be  had,  as  a  general  rule.    If  the  negligence  of  each  is  equal,  no 
recovery  can  be  had.    Ib. 

2015.  Where  the  negligence  of  the  plaintiff  contributing  to  the 
injury  is  greater  than  that  of  the  defendant,  the  former  cannot  recover. 
W.  U.  T.  Co.  v.  Quinn,  56  111.  319. 

2016.  If  both  parties  are  equally  in  fault  the  plaintiff  cannot  re- 
cover.   St.  L.,A.&  T.  H.  R.  R.  v.  Manly,  58  111.  300,  306. 

2017.  Wher£  there  has  been  fault  on  both  sides,  the  plaintiff  may 
recover  if  his  negligence  is  slight  and  that  if  the  defendant  is  gross  in 
comparison  with  that  of  the  plaintiff.    The  fact  that  a  party  has  been 
guilty  of  some  negligence,  does  not  excuse  gross  negligence,  or  author- 
ize the  other  party  to  recklessly  and  wantonly  destroy  his  property  or 
commit  a  personal  injury.   St.  L.,  A.  &  T.  H.  R.  R.  v.  Manly,  58  111.  306. 

2018.  Where  a  child  not  quite  five  years  old  was  struck  by  a  passing 
train  in  a  village,  which  was  running  at  great  speed,  the  child  not 
being  old  enough  to  be  chargeable  with  negligence,  and  its  mother's 
negligence  being  slight,  and  the  company  being  guilty  of  great  negli- 
gence: Held,  that  the  company  was  liable.    Q.  &  A.  R.  R.  v.  Gregory, 
58  111.  226. 

2019.  Negligence  resulting  in  injury  is  comparative,  and  it  is  not 
necessary  that  the  plaintiff  shall  be  free  from  all  negligence,  or  that 
he  shall  exercise  the  highest  possible  degree  of  prudence  and  caution 
to  entitle  him  to  recover,  if  it  appears  that  the  defendant  was  guilty 
of  a  higher  degree  of  negligence.    C.,  B.  &  Q.  R.  R.  v.  Payne,  59  111. 
534. 


AND  EMINENT  DOMAIN.  245 

2020.  An  instruction  that  if  the  bell,  &c.,  was  not  sounded  as  re- 
quired by  law,  the  plaintiff  might  recover  for  the  killing  of  her  hus- 
band, unless  he  was  guilty  of  a  greater  degree  of  negligence,  is  too 
broad.    The  liability  of  the  company  should  be  limited  to  the  injury 
caused  by  the  neglect  to  give  the  statutory  warning,  and  to  the  fact 
that  the  negligence  of  the  deceased  must  have  been  slight  as  compared 
with  that  of  the  company.    O.,  B.  &  Q.  R.  R.  v.  Lee,  60  111.  501. 

2021.  It  is  error  to  instruct  that  the  plaintiff  may  recover  if  the 
negligence  of  the  defendant  was  greater  than  his.    Where  there  is 
mutual  negligence,  the  plaintiff  may  recover  if  his  is  slight  when  com- 
pared with  the  defendant's;  but  there  must  be  more  than  a  bare  pre- 
ponderance against  the  defendant.    C.,  B.  &  Q.  R.  R.  v.  Dunn,  61  111. 
385. 

2022.  If  the  negligence  of  the  parties  producing  the  injury  is  equal, 
or  nearly  so,  or  that  of  the  plaintiff  is  greater  than  that  of  the  defend- 
ant, he  cannot  recover.    C.  &  A.  R.  R.  v.  Murray,  62  111.  326;  C.,  B.  & 
Q.R.R.  v.  Van  Patten,  64  111.  510,  517;  O.  <&  M.  R.R.  v.  Eaves,  42  111. 
288. 

2023.  Partial  or  slight  negligence  and  inattention  of  the  party  in- 
jured, will  not  bar  a  recovery  when  palpable  negligence  of  the  employer 
is  proven.    C.  &  A.  R.  R.  v.  Sullivan,  63  111.  293. 

2024.  A  plaintiff  while  walking  along  the  track  of  a  railway  com- 
pany in  a  village,  was  overtaken  and  struck  by  an  engine,  without  any 
head-light  and  running  at  a  high  rate  of  speed  and  no  bell  was  rung  or 
whistle  sounded:    Held,  that  the  negligence  of  the  plaintiff  was  slight, 
when  compared  with  the  gross  and  criminal  negligence  of  the  com- 
pany.   /.  &  St.  L.  R.  R.  v.  aalbreath,  63  111.  436. 

2025.  An  instruction  to  find  for  the  plaintiff  if  the  "defendant  was 
guilty  of  considerable  negligence  and  plaintiff  was  guilty  of  but  little 
negligence,"  is  bad  in  the  use  of  the  words  considerable  and  little  in 
respect  to  the  negligence  of  the  parties.    /.  C.  R.  R.  v.  Shultz,  64  111.  172. 

2026.  An  instruction  that,  if  the  deceased  failed  to  use  ordinary  care 
and  prudence  in  going  upon  the  railroad  track,  yet  if  the  company  was 
guilty  of  a  greater  degree  of  negligence,  the  plaintiff  might  recover, 
does  not  state  the  rule  of  comparative  negligence  with  sufficient  accu- 
racy.   It  is  not  the  law,  that  if  the  person  injured  is  guilty  of  gross 
negligence,  he  may  recover  on  proof  of  a  higher  degree  of  gross  negli- 
gence on  the  part  of  the  defendant.    C.,  B.  &  O.  R.  R.  v.  Van  Patten, 
64  111.  510. 

2027.  If  the  plaintiff  alone  is  guilty  of  negligence,  or  the  negligence 
of  the  parties  is  equal,  or  the  plaintiff's  negligence  is  gross,  no  action 
will  lie  in  his  favor,  unless  the  injury  is  willfully  inilicted.    C.,  B.  & 
Q.  R.R.  v.  Lee,  68111.  576. 

2028.  The  failure  to  give  the  statutory  signal  before  reaching  a 
highway  crossing,  will  authorize  a  less  degree  of  care  by  a  traveller 
attempting  to  cross  the  track,  and  any  injury  to  him  at  such  crossing 
must  naturally  be  attributable  in  a  greater  degree  to  the  negligence  of 
the  company.    C.  &  A.  R.  R.  v.  Elmore,  67  111.  176. 

2029.  An  instruction  to  find  for  the  plaintiff,  even  if  guilty  of  great 
negligence,  provided  the  defendant  was  only  guilty  of  some  more  neg- 
ligence, does  not  state  the  law  correctly.    /.  C.  R.  R.  v.  Maflit,  67  111.  431. 

2030.  An  instruction  that  the  jury  may  find  for  the  plaintiff,  unless 
his  negligence  was  equal  to,  or  greater  than  that  of  the  defendant,  is 
not  the  law,  and  is  erroneous.    /.  C.  R.  R.  v.  Benton,  69  111.  174. 

1031.  In  case  of  a  collision  through  the  negligence  of  the  plaintiff, 
he  cannot  recover,  even  if  the  company  also  was  in  default,  unless  the 
company  or  its  servants  willfully  caused  the  injury,  or  was  guilty  of 


246  EAILBOADS,  'WAREHOUSES, 

such  negligence  or  reckless  conduct  as  that  <the  plaintiff's  was  slight 
when  compared  with  it.    C.  W.  Div.  Ry.  v.  Bert,  69  111.  388. 

2032.  Although  the  plaintiff  may  have  been  guilty  of  some  negli- 
gence, still  if  it  is  slight  as  compared  with  that  of  the  defendant,  he 
may  recover;  but  he  cannot  unless  the  negligence  of  the  defendant 
clearly  and  largely  exceeds  that  of  the  plaintiff.    Ch.  &  N.W.Ry.v. 
Clark,  70  111.  276. 

2033.  It  is  not  sufficient  to  entitle  the  plaintiff  to  recover  where  he 
has  been  guilty  of  contributory  negligence,  that  there  is  a  mere  pre- 
ponderance in  the  degrees  of  negligence  against  the  defendant.    Ib. 

2034.  In  an  action  for  causing  death  by  negligence,  if  the  company 
was  guilty  of  negligence,  and  the  deceased  used  ordinary  care,  or  was 
guilty  of  slight  negligence  in  comparison  with  that  of  the  company, 
which  (was  gross,  a  recovery  may  be  had.    /.  C.  R.  R.  v.  Cragin,  71 
111.  177. 

2035.  Where  a  person  killed  by  a  train  of  cars  was  guilty  only  of 
slight  negligence  as  compared  with  that  of  the  company,  which  was 
gross,  a  recovery  may  be  had.    P.,  C.  &  St.  L.  Ry.  v.  Knutson,  69  111. 
103. 

2036.  This  court  has  never  held  that  a  plaintiff  may  recover  on 
account  of  the  negligence  of  the  defendant  being  greater  than  his.    C. 
&  A.  R.  R.  v.  Mock,  72  111.  141. 

2037.  Where  the  plaintiff's  own  negligence  was  the  cause  of  the 
injury,  or  the  negligence  of  the  parties  is  equal,  or  nearly  so,  there 
can  be  no  recovery.    It  is  only  where  the  negligence  of  the  plaintiff  is 
slight  in  comparison,  and  that  of  the  defendant  is  gross,  that  a  recov- 
ery is  warranted,  except  where  the  injury  is  willfully  inflicted.    /.  C. 
R.R.  \.Hall,  72  111.  222. 

2038 .  A  plaintiff  free  from  all  negligence  may  recover  for  an  injury 
resulting  from  negligence  of  the  defendant,  or  a  plaintiff  who  is  even 
guilty  of  slight  negligence,  may  recover  of  a  defendant  who  has  been 
grossly  negligent,  or  whose  conduct  has  been  wanton  or  willful.    /.  C. 
R.  R.  v.  Hammer,  72  111.  347. 

2039.  Where  a  father  sues  for  an  injury  to  his  child,  his  conduct 
must  be  free  from  blame,  or  his  negligence,  at  least,  should  be  slight, 
and  that  of  the  defendant  gross,  to  entitle  him  to  recover.    Hund  v. 
aeier,  72  111.  393. 

2040.  Where  there  is  evidence  of  contributory  negligence  on  the 
part  of  the  plaintiff,  it  is  improper  to  give  an  instruction  which 
assumes  that  a  mere  preponderance  of  negligence  on  the  part  of  the 
defendant,  will  entitle  the  plaintiff  to  recover.    R.,  R.  I.  &  St.  L.  R.  R. 
v.  Irish,  72  111.  404. 

2041.  Error  to  instruct  that  the  plaintiff  can  recover  if  the  negli- 
gence of  the  defendant  was  of  a  higher  degree  than  that  of  the  plain- 
tiff.   I.C.  R.  R.  v.  Goddard,  72  111.  567. 

2042.  Where  a  servant  is  employed  in  a  business,  and  at  a  place 
not  at  all  dangerous,  and  the  employer  creates  a  peril  at  the  place 
where  the  servant  is  at  work,  and  the  servant  in  the  performance  of 
his  regular  duty,  has  occasion  to  pass  where  the  peril  is,  and  is  guilty 
of  negligence  in  so  doing,  and  is  injured,  his  negligence  is  slight  as 
compared  with  that  of  his  employer,  which  is  gross,  and  the  servant 
may  recover.    JFairbank  v.  Haentzsche,  73  111.  236. 

2043.  Where  a  party  killed  was  guilty  of  contributory  negligence, 
his  personal  representative  cannot  recover,  unless  the  negligence  of  the 
defendant  contributing  to  cause  the  death  was  gross,  in  comparison 
with  which,  the  negligence  of  the  intestate  was  slight.    C.,  B.  &  Q.  R. 
R.  v.  Van  Patten,  74  111.  91. 


AND  EMINENT  DOMAIN.  247 

2044.  If  a  railway  company  is  guilty  of  gross  negligence  resulting 
in  the  death  of  a  person,  and  the  latter  is  guilty  of  only  slight  negli- 
gence, this  will  give  a  right  of  recovery.    T.,  W.  &  W.  Ry.  v.  O'Connor, 
11  111.  391. 

2045.  An  instruction  for  the  defendant  that  the  deceased  must  have 
been  free  from  contributory  negligence,  to  authorize  a  recovery,  is  too 
broad.    If  his  negligence  was  slight  and  that  of  the  company  was 
gross,  it  will  be  liable.    76. 

2046.  In  a  case  of  mutual  negligence,  it  is  error  to  instruct  that  the 
plaintiff  may  recover  if  the  defendant  is  guilty  of  more  negligence 
than  that  of  the  plaintiff,  in  causing  the  injury.    /.,  B.  &  W.  R.  R.  v. 
Flanigan,  11  111.  365. 

2047.  If  a  person  killed  was  guilty  of  slight  negligence,  a  recovery 
may  be  had,  if  the  railway  company  was  guilty  of  gross  negligence 
causing  the  injury.    St.  L.,  V.  &T.H.R.R.  v.  Dunn,  78  111.  197,  202. 

2048.  The  omission  of  proper  precautions  on  the  part  of  a  railway 
company,  under  some  circumstances  may  relieve  the  plaintiff  from 
the  charge  of  negligence  on  his  part.    Ib. 

2049 .  A  party  driving  upon  a  railroad  track  without  looking  for 
an  approaching  train  is  guilty  of  such  negligence  as  to  bar  an  action 
for  an  injury,  unless  the  company  is  guilty  of  gross  negligence.    C.  & 
N.  W.  Ry.v.  Hatch,  79  111.  137. 

2050.  Where  the  plaintiff's  negligence  is  comparatively  slight  and 
that  of  the  defendant  gross,  the  plaintiff  will  not  be  deprived  of  his 
action;  but  even  if  the  negligence  of  the  defendant  is  gross,  yet  if  the 
negligence  of  the  plaintiff  is  not  slight  as  compared  with  that  of  de- 
fendant, the  plaintiff  cannot  recover.    Sterling  Bridge  Co.  v.  Pearl, 
80111.251. 

2051.  It  is  error  to  instruct  that  a  plaintiff  who  ha,s  been  guilty  of 
negligence  which  contributed  to  the  injury  is  entitled  to  recover, 
unless  his  negligence  contributed  to  a  considerable  degree  to  such 
injury.    Ib. 

2052.  Where  an  action  is  brought  to  recover  for  an  injury  resulting 
from  negligence  of  another,  which  was  not  wanton  or  willful,  it  is  an 
essential  element  to  a  recovery  that  the  plaintiff  or  person  injured 
must  have  exercised  ordinary  care  to  avert  the  injury;  but  where  the 
injury  has  been  willfully  inflicted,  an  action  lies,  although  the  plaintiff 
or  party  injured,  may  not  have  been  free  from  negligence.     Litchfleld 
Coal  Co.  v.  Taylor,  81  111.  590. 

2053.  A  plaintiff  may  recover  for  the  death  of  his  intestate,  al- 
though the  latter  was  guilty  of  contributory  negligence,  provided  it 
was  slight,  and  that  of  the  defendant  gross,  in  comparison  with  each 
other;  but  if  the  negligence  of  the  intestate  was  not  slight  and  the 
defendant's  gross  when  compared,  no  recovery  can  be  had.    R.,  R.  I.  & 
St.  L.  R.  R.  v.  Delaney,  82  111.  198. 

2054.  Whether  the  negligence  of  a  person  killed  by  a  railway  train 
was  slight  as  compared  with  that  of  defendant,  is  a  question  of  fact 
for  the  jury.    Schmidt  v.  C.  &  N.  W.  Ry.,  83  111.  405;  Chicago  v.  Kim- 
ball,  18  B.  240;  Penn.  Co.  v.  Frana,  112  111.  398;  Wabash  Ry.  v. 
Elliott,  98  111.  481. 

2055.  A  mere  preponderance  of  negligence  on  the  part  of  the 
defendant  is  not  sufficient  to  render  him  liable.    Plaintiff's  must  be 
slight  as  compared  with  defendant's,  which  must  be  gross.    Schmidt 
v.  C.  &  N.  W.  Ry.,  83  111.  405;   R.,  R.  I.  &  St.  L.  R.  R.  v.  Irish,  72  111. 
404;  C.  &  N.  W.  Ry.  v.  Clark,  70  111.  276. 

2056.  It  is  indispensible  to  a  right  of  recovery  that  the  injured 
party  shall  have  exercised  ordinary  care  for  the  security  of  his  person 


248  RAILROADS,  WAREHOUSES, 

or  property,  or  that  the  injury  be  willfully  or  wantonly  inflicted.  /.  C. 
R.R.v.  Hetherinyton,  83  111.  510. 

2057.  In  a  case  of  contributory  negligence  it  is  error  to  instruct 
that  the  plaintiff  may  recover,  though  guilty  of  slight  negligence,  if 
the  defendant's  employes  fell  short  in  any  degree  of  the  exercise  of 
that  high  degree  of  care  as  under  the  circumstances,  it  was  rea- 
sonable to  have  used  to  prevent  the  injury.  1.  C.  R.  R.v.  Hammer, 
85  111.  526. 

2058  An  instruction  that  even  if  the  plaintiff  was  guilty  of  negli- 
gence, that  fact  does  not  destroy  his  right  to  recover,  if  the  negligence 
of  the  defendant  was  so  much  greater  than  that  of  the  plaintiff  as  to 
clearly  preponderate  and  outweigh  it,  is  clearly  erroneous.  Joliet  v. 
Reward,  86  111.  402. 

2059.  Where  the  negligence  of  a  railway  company  was  gross,  even 
if  the  person  killed,  while  crossing  the  track  was  guilty  of  negligence 
in  failing  to  listen  and  look  for  a  train  out  of  time,  which  negligence 
is  slight,  a  recovery  may  be  had.    C.  B.  &  Q.  R.  R.  v.  Lee,  87  111.  454. 

2060.  Error  to  instruct  that  a  plaintiff  may  recover,  unless  his 
negligence  contributing  to  the  injury  was  equal  to  or  greater  than 
that  of  defendant.    /.  &  St.  L.  R.  R.  v.  Evans,  88  111.  63;  /.  C.  R.  R.  \. 
Benton,  69  111.  174. 

2061.  In  instructing  the  jury  in  a  case  of  mutual  negligence,  both 
the  terms  slight  and  gross  should  be  used.    E.  St.  L.,  P.  &  P.  Co.  v. 
Hightower,  92  111.  139;  C.  B.  &  Q.  R.  R.  v.  Avery,  8  B.  183. 

2062.  Where  there  is  negligence  on  the  part  of  a  child  which  is 
injured,  or  those  having  its  care,  contributing  directly  to  the  injury, 
there  can  be  no  recovery,  unless  such  negligence  is  slight  and  that  of 
the  defendant  is  gross,  in  comparison  in  respect  to  that  which  produced 
the  injury.    It  is  not  sufficient  that  the  defendant  may  have  been  guilty 
of  a  greater  degree  of  negligence  in  that  respect.    T.,  W.  &  W.  Ry.  v. 
Grable,  88  111.  441. 

2063.  Error  to  instruct  that  the  plaintiff  may  recover  though  neg- 
ligent, provided  his  negligence  is  slight  in  comparison  with  that  of  the 
defendant.    C . ,  B .  &  Q.  R .  R .  v.  Harwood,  90  111.  425. 

2064.  A  person  struck  and  injured  by  a  train  of  cars  within  the 
limits  of  a  city  at  a  street  crossing,  may  recover  of  the  company,  if  at 
the  time  of  the  collision  the  train  was  running  at  an  improper  rate  of 
speed  with  reference  to  the  plaintiff's  safety,  even  if  he  was  guilty  of 
slight  negligence,  provided  the  negligence  of  the  company  was  gross, 
when  compared  with  that  of  the  plaintiff.     Wabash  R.  R.  v.  Henks, 
91  111.  406. 

2065.  An  instruction  that  the  jury  cannot  find  for  the  plaintiff 
unless  they  "believe  from  the  evidence  that  the  injury  complained  of 
was  caused  by  the  negligence  of  the  defendant  and  the  plaintiff  was 
without  fault,"  is  stronger  than  the  law  will  justify,  as  ignoring  the 
doctrine  of  comparative  negligence.  O.  &  M .  R.  R.  v.  Porter, 92  111.  437. 

2066.  Where  the  plaintiff  is  guilty  of  contributory  negligence  he 
cannot  recover,  unless  it  appears  that  his  negligence  was  slight  and 
that  of  the  defendant  gross  in  comparison  with  each  other;  and  in 
instructing  both  these  terms  should  be  used.    E.  St.  L.,  P.&P.Co. 
v.  Hightower,  92  111.  139. 

2067.  In  an  action  to  recover  for  the  burning  of  a  building  placed 
near  the  defendant's  railroad,  by  the  escape  of  sparks,  an  instruction 
placing  the  right  of  recovery  alone  on  the  defendant's  negligence,  and 
which  entirely  ignores  the  question  of  due  care  on  the  part  of  the  plain- 
tiff in  trying  to  save  the  property,  is  erroneous.    C.  &  A.  R.  R.v. 
Pennell,  94  111.  448. 


AND  EMINENT  DOMAIN.  249 

2068.  Improper  to  state  in  an  instruction  that  where  a  person  is 
injured  for  want  of  proper  care  on  his  part,  no  action  will  lie,  unless 
the  injury  was  willfully  inflicted  by  the  defendant,  or  that  if  it  were 
reasonably  possible  for  the  plaintiff  under  all  the  circumstances,  to 
have  prevented  the  injury  by  the  exercise  of  proper  caution,  and  if 
such  care  would  have  averted  the  injury,  in  such  case  he  was  guilty  of 
gross  negligence  and  cannot  recover,  unless  defendant  willfully  inflict- 
ed the  injury .    Stratton  v.  C.,  C.  H.  Ry.,  95  111.  25. 

2069.  In  a  case  of  mutual  negligence,  a  mere  preponderance  in 
degree  will  not  render  the  defendant  liable.    It  is  error  to  instruct, 
that  although  the  plaintiff  by  his  own  negligence  may  have  contrib- 
uted to  the  injury,  yet  if  the  negligence  of  the  defendant  was  of  a 
higher  degree,  or  so  much  greater  than  that  of  the  plaintiff,  that  the 
negligence  of  the  latter  was  slight  in  comparison,  the  plaintiff  may 
recover.    C.  &  N.  W.  Ry.  v.  Dimick,  96  111.  42. 

2070.  In  an  action  for  causing  the  death  of  a  person,  it  should  be 
left  to  the  jury  by  instructions  to  say  whether  the  negligence  of  the 
deceased  in  passing  under  a  freight  car,  was  slight  and  that  of  the 
agents  of  the  company  gross,  in  obstructing  the  passage  to  the  depot, 
and  in  inviting  the  deceased  to  pass  under  the  freight  car.    C.,  B .  & 
Q.R.R.  v.  Sykes,  96  111.  162. 

2071.  A  servant  of  a  railway  company,  to  recover  for  a  personal 
injury  growing  out  of  the  negligence  of  the  company,  must  have  used 
ordinary  care  on  his  part,  considering  his  surroundings.     Wabash  Ry. 
v.  Elliott,  US  111.  481. 

2072.  Where  the  question  of  contributory  negligence  on  the  part 
of  the  plaintiff's  intestate  is  fairly  raised,  it  is  error  to  ignore  entirely 
that  question  in  the  instructions.    N.  Oh.  Rolling  Mill  Co.v.  Morris- 
sey,  111  111.  646;   W.,  St.  L.  &P.  Ry.  v.  Shacklet,  105  111.  364;  Peoria  v. 
Simpson,  110  111.  294. 

2073.  An  instruction  that  if  the  plaintiff  was  guilty  of  some  negli- 
gence, but  that  the  defendant  was  guilty  of  gross  negligence  contrib- 
uting to  the  injury  and  that  the  plaintiff's  negligence  was  slight  as 
compared  with  that  of  defendant,  a  recovery  could  be  had,  states  the 
law  correctly.    Chicago  v.  Stearns,  105  III.  554. 

2074.  An  instruction  speaking  of  negligence  and  also  gross  negli- 
gence of  the  defendant  and  then  referring  to  the  slight  negligence 
of  the  person  injured  as  compared  with  the  defendant,  is  too  loose 
and  inaccurate   in   not  stating  definitely    which  degree    of  negli- 
gence of  the  defendant  the  jury  should  compare  with  the  injured 
party's  negligence.    C.,  R.  I.  &  P.  R.  R.  v.  Clark,  108  111.  113. 

2075.  An  instruction  seeming  to  import  that  any  negligence  on 
the  part  of  the  plaintiff  contributing  to  his  injury,  might  defeat  a  re- 
covery, is  faulty.    It  should  read  that  if  the  plaintiff  so  far  contrib- 
uted to  the  injury  by  his  own  negligence,  or  want  of  ordinary  care  and 
caution,  he  could  not  recover.    C.,  B.  &  Q.  R.  R.  v.  Avery,  109  111.  314. 

2076.  Although  a  bell  is  not  rung  or  whistle  sounded,  at  a  public 
crossing,  still  a  party  claiming  to  recover  for  an  injury  in  consequence 
of  such  omission,  must  have  usert  due  care  and  caution.    To  recover 
he  is  required  to  exercise  such  care  as  might  be  expected  of  prudent 
men  generally  under  like  circumstances.     W.,  St.  L.  &  P.  Ry.  v.  Wal- 
lace, 110  111.  114. 

2077.  The  law  does  not  require  a  servant  working  in  a  dangerous 
place  to  use  the  highest  degree  of  care  and  caution,  to  entitle  him  to 
recover  for  an  injury  received  from  the  negligence  of  other  servants 
or  agents  of  his  employer.    L.  S.  &  M.  S.  R.  R.  v.  O'Connor,  115  111.  254. 

2078.  If  a  fireman  of  a  railway  company  while  in  the  discharge  of 


250  EAILEOADS,  WAEEHOUSES, 

his  duty,  and  using  ordinary  care  for  his  safety,  is  injured  and  killed 
by  the  explosion  of  a  boiler  of  the  company,  and  the  explosion  was 
the  result  of  the  defendant's  negligence,  the  fireman's  personal  represen- 
tative may  recover.  Calumet  Iron  and  Steel  Co.  v.  Martin,  115  111.  358. 

2079.  Proof  of  the  negligent  acts  or  omissions  of  the  defendant 
charged,  which  fails  to  show  negligence  in  the  plaintiff,  makes  a 
prima  fade  right  of  recovery,  and  it  is  then  incumbent  on  the  defend- 
ant to  show  such  negligence  on  the  part  of  the  plaintiff  as  will  defeat 
a  recovery,  or  to  give  proof  tending  to  show  it,  in  order  to  warrant 
the  court  in  giving  an  instruction  relating  to  contributory  negligence. 
U.  S.  Rolling  Stock  Co.  v.  Wilder,  116  111.  100. 

2080.  It  is  not  necessary  in  an  instruftion  to  state  the  law  of  com- 
parative negligence  as  applicable  to  an  infant  incapable  of  observing 
ordinary  care.    Ch.,  St.  L.  &  P.  R.  R.  v.  Welsh,  118  111.  572. 

2081.  Although  a  plaintiff  may  have  been  guilty  of  some  negligence 
contributing  to  the  injury,  he  may  nevertheless  recover,  if  his  negli- 
gence was  slight  when  compared  with  that  of  the  defendant  which  was 
gross.    (This  applies  generally  to  cases  involving  injury  to  person  or 
property,  and  to  actions  for  death  by  negligence.)    C.,  R.  I.  &  P.  R.  R. 
v.  Dignan,  56  111,  487;  C.,  B.&Q.  R.  R.  v.  Gregory,  58  111.  272;  8t.  L., 
A.&T,  H.  R.  R.v.  Manly,  58  111.  306;  C.,  B.  &  Q.  R.  R.  v.  Dunn,  61 
111.  385;  I.  &  St.  L.  R.  R.  v.  Stables,  62  111.  313;  C.  &  A.  R.R.  v.  Mur- 
ray, 62  111.  326;  C.,  B.  &  Q.R.  R.  v.  Van  Patten.MIll.  517;  T.,  W.  &  W. 
Ry.  v.  Spencer,  66  111.  528;  /.  C.  R.  R.  v.  Hoffman.  67  111.  287;  R.,  R.  I. 
&St.  L.  R.  R.  v.  Coultas,  67  111.  398,  401;  1.  C.  R.  R.  v.  Maffit,  67  111. 
431;  C.,  B.  &  Q.  R  R.  v.  Lee,  68  111.  576;  /.  C.  R.  R.  v.  Benton,  69  111. 
174;  P.,  C.  &  St.  L.  Ry.  v.  Knutson,  69  111.  103;  Ch.  W.  D.  Ry.  v.  Bert, 
69  111.  388;  Ch.  City  Ry.  v.  Lewis,  5  Bradw.  242;  I.C.R.R.v.  Cragin, 
71  111.  177;  T.,  W.  &  W.  Ry .  v.  McGinnis,  71  111.  346;  C.&  A.R.R.  v. 
Mock,  72  111.  141;  /.  C.  R.  R.  v.  Hall,  72  111.  222;  R.,  R.  I.  &  St.  L.  R. 
R.  v.  Hillmer,  72  111.  235;  /.  C.  R.  R.  v.  Hammer,  72  111.  347;  G.  T.  M. 
&  T.  Co.  v.  Hawkins,  72  111.  386;  Hund  v.  Qeier,  72  111.  393;  I.  C.  R.  R. 
v.  Goddard,  72  111.  567;  Fairbank  v.   Haentzsche,  73  111.  236;  C.,  B.  & 
Q.  R.  R.  v.  Van  Patten,  74  111.  91;  T.,  W.  &  W.  Ry.  v.  O'Connor,  11  111. 
391;  St.  L.,  V.  &  T.H.R.  R.  v.  Dunn,  78  111.  197;  Kewanee  v.  Depew, 
80  111.  119;  Sterling  Bridge  Co.  v.  Pearl,  80  111.  251;  R.,R.  I.  &  St.  L. 
R.  R.  v.  Delaney,  82  111.  198;  Schmidt  v.  C.  &  N.  W.  Ry.,  83  111.  405;  /. 
C.  R.  R.  v.  Hetherington,  83  111.  510;  Quinn  v.  Donovan,  85  111.  194;  7. 
C.  R.  R.  v.  Hammer,  85  111.  526;  C.,  B.  &  Q.  R.  R.  v.  Lee,  87  111.  454;  /. 
&  St.  L.  R.  R.  v.  Evans,  88  111.  63;  T.,  W.  &  W.  Ry.  v.  Grable,  88  111. 
441;  C.,  B.  &  Q.  R.  R.  v.  Harwood,  90  111.  425;  Wabash  Ry.  v.  Henks, 
91  111.  406;  E.  St.  L.,  P.  &  P.  Co.  v.  Hightower,  92  111.  139;  /.  C.  R.  R. 
v.  Patterson,  93  111.  290;  Stratton  v.  C.,  C.  H.  Ry.,  95  111.  25;  C.  cf-  N. 
W.  Ry.  v.  Dimick,  96  111.  42;  C.,  B.  &  Q.  R.  R.  v.  Sykes,  96  111.  162;  C., 
B.  &  Q.  R.  R.  V.Johnson,  10.S  111.  512;  Chicago  v.  Stearns,  105  111.  554; 
W.,  St.  L.  &  P.  Ry.  v.  Wallace,  110  111.  114;  C.  &  A.  R.  R.  v.  Johnson, 
116  111.  206;  L.  S.  &  M.  S.  R.  R.  v.  Berlink,  2  B.  427;  C.  &  A.R.R.  v. 
Langley,  2  B.  505;  I.  C.  R.  R.  v.  Brookshire,  3  B.  225;  Winchester  v. 
Case,  5  B.  486;  C.,  B.  &  Q.  R.  R.  v.  Avery,  8  B.  133;  Glover  v.  Gray,  9  B. 
329;  W.,  St.  L.  &  P.  Ry.  v.  Moran,  13  B.  72;  St.  L..  A.  cf-  T.  H.  R.  R. 
v.  Andres,  16  B.  292;  Ch.,  St.  L.  &  P.R.  R.  v.  Welsh,  118  111.  572;  Ch. 
&  E.  III.  R.  R.  v.  O'Connor,  119  111.  586;  Ch.  &  N.  W.  Ry   v.  Goebel, 
119  111.  515;  Union  Ry.  &  Transit  Co.  v.  Shacklet,  119  111.  232;  Ch.,  St. 
L.  &  P.  R.  R.  v.  Hutcldnson,  120  111.  587. 

WILLFUL  INJURIES. 

2082.  A  party  failing  to  exercise  ordinary  care  may  recovef  for  an 
injury  wantonly  or  willfully  inflicted,  or  resulting  from  gross  culpable 


AND  EMINENT  DOMAIN.  251 

and  criminal  negligence  amounting  to  a  wanton,  reckless  or  willful 
wrong.  C.  &  N.  W.  Ry.  v.  Clark,  2  B.  116;  C.,  B.  &  Q.  R.  R.  v.  Colwell, 
3  B .  545 ;  C.,  S.  &  Q .  R .  R .  v.  Dougherty,  12  B.  181 ;  Union  Ry.  &  Tr.  Co.  v. 
Kallaher,  12  B.  400;  C.  B.  &  Q.  R.  R.  v.  Triplett,  38111.  482;  St.  L.,  A.  & 
T.  H.  R.  R.  v.  Todd,  36  111.  414;  St.  L.,  A.  &  T.  H.  R.  R.  v.  Manly,  58 
111.  306;  C.,  B.  &  Q.  R.  R.  v.  Payne,  59  111 .  534;  C.  &  A.  R.  R.  v .  Wilson, 
63  111.  167;  /.  &St.L. R. R.  v.  Galbreath,  63  111.  436;  C.,B.&Q.R.R.  v. 
Lee,  68  111.  576;  C.  W.  D.  Ry.  v.  Bert,  69  111.  388;  /.  C.  R.  R.  v.  Godfrey, 
71  111.  500;  /.  C.  R.  R.  v.  Hall,  72  111.  222;  I.C.R.R.  v.  Hammer,  72 
111.  347;  Litvhfield  Coal  Co.  v.  Taylor,  81  111.  590;  I.C.R.R.\.  Heth- 
erington,  83  111.  510;  C.,  B.  &  Q.  R.R.v.  Dickson,8SI]l.  431;  Austin  v. 
C.,  R.  I.&.P.R.R.,  91  111.35;  Stratton  v.  C.  C.  H.  Ry.  95  111.25. 

2083.  The  fact  that  the  owner  of  stock  may  be  guilty  of  negligence 
in  permitting  the  same  to.  go  at  large,  or  to  break  through  the  fencing 
and  get  upon  the  railroad  track,  will  not  relieve  the  railway  company 
from  its  duty  to  use  ordinary  care  to  avoid  injuring  them,  or  defeat  an 
action  for  killing  or  injuring  them,  where  this  might  have  been  pre- 
vented by  the  exercise  of  ordinary  care.  Ch.  &  Miss.  R.R.v.  Patchin, 
16  111.  198;  Great  Western  R.R.  v.  Thompson,  17  111.  131;  C.M.T.  R. 
R.  v.  Rockafellow,  17  111.  541:  /.  &  N. I. R.R. v.  Jones,  20111.  221; 
G.&C.U. R.R.v.  Crawford,25Ill.  529;  C.,B.&  Q. R.R.v.  Cauffman. 
28111.513;  /.  &C.  R.R.v .  Phelps,2$  111.  447;  l.C. R.R.v.  Goodwin, 
30  111.117;  G.  W.R.R.v.Morthland,  30111.  451;  St.L.,  A.  &  T.H.R. 
R.v.  Todd,  36  111.  409;  C.,B.&Q.  R.R.v.  Cauffman,  38111.424;  I.C. 
R.R.v.Whalen,42U\.3W;  l.C. R.R.v.  Wren,  43  111.78;  l.C. R.R.v. 
Middlesworth,  46  111.  494;  l.C.  R.R.v.  Baker,  47  111.  295;  T.P.&  W. 
Ry.v.Bray,  57111.514;  T. P. &  W  .Ry.v  .Ingraham,  58  111.120;  R.R. 
I. &  St. L. R.R.v. Lewis,  58111.49;  C.  ,B.  &  Q.  R.R.  v.  Van  Patten,  64 
111.  517;  St.  L.  A. &  T.H.R. R.v. Manly,  58111.303;  C.&A. R.R.v. 
Me  Morrow,  67  111.  218;  C.  &  A.  R.  R.  v.  Becker,  76  111.  25;  P.,  P.  &  J. 
R. R.v. Champ,  75  111.  577. 

2084.  KILLING  STOCK — FRIGHTENING  TEAM.     §  6|.   Any 
engineer,  or  person  having  charge  of  and  running  any  rail- 
road engine  or  locomotive,  who  shall  willfully  or  maliciously 
kill,  wound  or  disfigure  any  horse,  cow,  mule,  hog,  sheep  or' 
other  useful  animal,  shall,  upon  conviction,  be  fined  in  the 
sum  of  not  less  than  the  value  of  the  property  so  killed, 
wounded  or  disfigured,  or  confined  in  the  county  jail  for  a 
period  of  not  less  than  ten  days;   and  any  such  engineer  or 
fireman,  or  other  person,  who  shall  wantonly  or  unneces- 
sarily blow  the  engine  whistle,  so  as  to  frighten  any  team, 
shall  be  liable  to  a  fine  of  not  less  than  $10  nor  more  than 
$50.     [See  Criminal  Code,  ch.  38,  §  191,  of  E.  S.  1887.    R  S. 
1887,  p.  1014,  §  69;  8.  &  C.,  p.  1937,  §  69;  Cothran,  p.  1154, 
§55.     See  ante,  175.] 

2085.  If  the  alarm  whistle  is  needlessly  sounded  in  the  rear  of  a 
team  traveling  in  a  narrow  lane  near  the  railroad  track  and  thereby 
causes  the  team  to  run  away  and  injures  the  plaintiff,  the  company 
will  be  liable  for  the  injury.     C.,  B.  &  Q.  R.  R.  v.  Dickson,  88  111.  431. 

2086.  As  to  liability  for  carelessly  and  recklessly  sounding  the 
whistle  at  an  improper  place,  or  where  not   required,  resulting  in 
injury.    See  also  T.,  W.  &W.  Ry.v.  Harmon,  47  111.  298;  P., W.  &  B. 
R.  R.  v.  Stinger,  78  Pa.  St.  219;  P.  &  R.  R.  R.  v.  Killips,  88  Pa.  St. 
405;  Georgia  R.  R.v.  Newsome,QO  Ga.  492;  Penn.  R.R.v.  Burnett,  59 
Pa.  St.  259;  C.  &  N.  W.  Ry.  v.  Clark,  2  B.  116;  Hill  v.P.&R.R.  R., 


252  KAILROADS,  WAREHOUSES, 

55  Me.  438.  See  also  Crim.  Code;  S.  &  C.,  §  243.  Hudson  v.  L.  &  N. 
R.  R.,  14  Bush.  303;  Billman  v.  /.,  C.  &  L.  R.  R.,  76  Ind.  176;  City 
of  Joliet  v.  Seward,  86  111.  402. 

2086a.  For  an  injury  caused  by  the  blowing  of  a  whistle  at  a 
proper  titne  and  place,  but  so  near  a  team  as  to  cause  it  to  run  away 
with  the  plaintiff  in  his  wagon,  exemplary  damages  not  proper.  C., 
B.  &  Q.  R.  R.  v.  Dunn,  52  111.  451.  See  W.,  St.  L.  <&P.  Ry.,  v.  Thomp- 
son, 15  Bradw.  118;  10  Id.  271. 

2087.  STARTING  TRAIN  WITHOUT  SIGNAL.  §  7.  If  any 
engineer  on  any  railroad  shall  start  his  train  at  any  station, 
or  within  any  city,  incorporated  town  or  village,  without  ring- 
ing the  bell  or  sounding  the  whistle  a  reasonable  time  before 
starting,  he  shall  forfeit  a  sum  not  less  than  $10  nor  more 
than  $100,  to  be  recovered  in  an  action  of  debt  in  the  name  of 
the  people  of  the  state  of  Illinois,  and  such  corporation  shall 
also  forfeit  a  like  sum,  to  be  recovered  in  the  same  manner. 
[R  S.  1887,  p.  1014,  §  70;  S.  &  C.,  p.  1937,  §  70;  Cothran,  p. 
1154,  §56.] 

2088.  Not  the  duty  of  yard  master  to  give  any  signal  before  loos- 
ing the  brakes  of  a  freight  car,  although  boys  are  near  by.    C.  &  A. 
R.  R.  v.  McLaughlin,  47  111.  265. 

2088a.  Injury  to  servant  unloading  iron  from  car,  by  running  train 
on  switch  without  giving  any  signal,  no  recovery  because  a  fellow 
servant.  C.  &  A.  R.  R.  v.  Keefe,  47  111.  108.  Not  duty  of  yard  master 
to  give  signal  before  loosing  brakes  on  freight  car.  C.  &  A.  R.  R.  v. 
MeLaiiyhlln,  47  111.  265.  Train  on  a  high  trestle,  starting  with  a  jerk. 
R.,  R.  I.  &  St.  L.  R.  R.  v.  Coultas,  67  111.  398;  1.  C.  R.  R.  v.  Green,  81 
111.  19.  Setting  a  car  in  motion  negligently.  Noble  v.  Cunningham, 
74  111.  51.  Starting  street  car  as  passenger  is  getting  off  without 
notice.  Ch.  W.  Div.  Ry.  v.  Mills,  91  111.  39;  Ch.  City.  Ry.\.  Mum- 
ford,  97  111.  560;  Ch.  W.  Div.  Ry.  v.  Mills,  105  111.  63.  Starting  car 
suddenly  without  notice  to  servant  attempting  to  get  on  same.  Ch. 
&  W .  Ind.  R.  R.  v.  Bingenheimer,  116  111.  226;  same  case,  14  Bradw. 
125. 

2089.  APPROACHES  AT  CROSSINGS.     §  8.   Hereafter,  at  all 
of  the  railroad  crossings  of  highways  and  streets  in   this 
state,  the  several  railroad  corporations  in  this  state  shall  con- 
struct   and    maintain    said    crossings   and   the    approaches 
thereto,  within  their,  respective  rights  of  way,  so  that  at  all 
times  they  shall  be  safe  as  to  persons  and  property.     [L. 
1869,  p.  312,  §  1,  (re-written);  E.  S.  1887.  p.  1014,  §  71;  S.  & 
C.,  p.  1937,   |   71;    Cothran,  p.  1154,  §  57.      See  ante,  118, 
145,  149.] 

2090.  The  option  vested    in   a  railway  company  by  charter  to 
change  highway  crossings  will  not  be  interfered  with  by  a  court  of 
equity  where  the  company  has  not  failed  to  exercise  proper  care,  skill 
and  precaution.    I.  C.  R.  R.  \ .  Bentley,  64  111.  438. 

2091.  In  the  absence  of  statutory  enactment,  a  railway  company 
is  under  no  obligation  to  leave  every  highway  that  it  crosses  in  a  safe 
condition.    People  v.  C.  &  A.  R.  R.,  67  111.  118. 

2092.  Duty  by  charter  to  make  suitable  crossings  and  keep  the 
same  in  repair  is  binding  on  the  successor  of  the  company .    Ib . 


AND  EMINENT  DOMAIN.  253 

2093.  Change  in  crossing  by  consent  of  the  public  authorities 
does  not  relieve  company  of  this  duty.    Ib. 

2094.  Duty  to  restore  stream  crossed  to  its  former  state.     C.,  R.  I. 
&P.R.R.V.  Moffit,  75  111. 524;  I7.,  W .&  W.Ry.v.  Morrison,  11  111.616. 

2095.  Company  chargeable   with  notice  of  all  perilous  circum- 
stances of  a  crossing  made  by  it.     R.,R.I.<&St.L.R.R.v.  Hill- 
mer,  72  111.  235;  /.  &  St.  L.  R.  R.v.  Stables,  62  111.  313.  • 

2096 .  City  cannot  extend  a  new  street  and  require  a  railway  com- 
pany to  construct  a  crossing  over  the  same,  without  regard  to  bene- 
fits.     I.  C.  R.  R.v.  Bloomington,  76  111.  447. 

2097.  Although  the  company  may  be  in  fault  in  not  making  a 
road  crossing  safe,  it  will  not  be  liable  for  the  death  of  one  killed  at 
such  crossing,  if  he  was  guilty  of  gross  negligence.     R.,  R.  I.  &  St. 
L.  R.  R.  v.  Byam,  80  111.  528. 

209 la.  Action  against  city  for  a  personal  injury  from  defective 
street  crossing.  Peru  v.  French,  55  111.  317;  Centralia  v.  Scott,  59 
111.129.  Where  duty  of  company  to  make  a  bridge  over  highway. 
/.  &  St.  L.  R.  R.v.  Stables,  62  111.  313.  As  to  liability  9f  carriers 
and  warehousemen  for  not  keeping  safe  approaches  to  their  cars  and 
places  of  business.  See  Buckingham  v.  Fisher,  70  111.  121. 

2098.  NEGLECT  TO  MAKE,  ETC.,  CROSSINGS — NOTICE.    §  9. 
Whenever  any  railroad  corporation  shall  neglect  to  construct 
and  maintain  any  of  its  crossings  and  approaches,  as  pro- 
vided in  section  8  of  this  act,  it  shall  be  the  duty  of  the 
proper  public  authorities,  having  the  charge  of  such  high- 
ways or  streets,  to  notify,  in  writing,  the   nearest  agent  of 
said  railroad  corporation  of  the  condition  of  said  crossing  or 
approaches,  and  direct  the  same  to  be  constructed,  altered  or 
repaired  in  such  manner  as  they  shall  deem  necessary  for 
the  safety  of  persons  and  property.     [E.  S.  1887,  p.  1015,  § 
72;  S.  &  C.,  p.  1938,  §  72;  Cothran,  p.  1154,  §  58.] 

2099.  EOAD  CROSSINGS — FAILURE  TO  CONSTRUCT  OR  REPAIR. 

§  10.  If  any  railroad  corporation  of  this  State  shall,  after 
having  been  notified,  as  provided  in  section  9  of  this  act, 
neglect  or  refuse  to  construct,  alter  or  repair  such  crossing 
or  approaches  within  thirty  days  after  such  notice,  then  said 
public  authorities  shall  forthwith  cause  such  construction, 
alteration  or  repairs  to  be  made.  [E.  S.  1887,  p.  1015,  §  73; 
S.  &  C.,  p.  1938,  §  73;  Cothran,  p.  1154,  §  59.} 

2 100.  EOAD  CROSSING — PENALTY  FOR  NEGLECT  OF  DUTY.    § 
11.    Said  railroad  corporation  shall  be  holden  for  all  necessary 
expenses  incurred  in  making  such  construction,  alteration 
and  repairs,  and  in  addition  thereto  shall  be  liable  to  a  fine 
of  $100  for  such  neglect  to  comply  with  the  requirements  of 
this  act,  which  fine  shall  be  enforced  by  the  said  public  au- 
thorities, in  the  name  of  the  people  of  the  state  of  Illinois, 
before  any  court  of  competent  jurisdiction  in  the  county. 
Such  fine,  when  collected,  to  be  paid  into  the  treasury  of  the 
authorities  enforcing  the  fine.     [E.  S.  1887,  p.  1015,  §  74;  S. 
&  C.,  p.  1938,  §  74;  Cothran,  p.  1154,  §  60.  J 


254  EAILEOADS,  WAREHOUSES, 

2101.  STOPPAGE  BEFORE  REACHING  RAILROAD  CROSSING, 
ETC.  §  12.  All  trains  running  on  any  railroad  in  this  State, 
when  approaching  a  crossing  with  another  railroad  upon  the 
same  level,  or  when  approaching  a  swing  or  draw  bridge,  in 
use  as  such,  shall  be  brought  to  a  full  stop  before  reaching 
the  same,  and  within  eight  hundred  (800)  feet  therefrom, 
and  the  engineer  or  other  person  in  charge  of  the  engine 
attached  to  the  train  shall  positively  ascertain  that  the  way 
is  clear  and  that  the  train  can  safely  resume  its  course  before 
proceeding  to  pass  the  bridge  or  crossing.  [As  amended  by 
act  of  June  19,  1886.  In  force  July  1,  1885.  E.  S.  1887,  p. 
1015,  §  75;  S.  &  C.,  p.  1938,  §  75;  Cothran,  p.  1155,  §  61.  J 

2102.  Engine  driver  having  the  right  to  the  road  at  a  crossing  will 
be  criminally  culpable  for  exercising  such  right  if  he  knows  or  has 
reason  to  expect  a  collision.  C.  &  A.  R.  R.  v.  R.,  R.  I.&  St.  L.  R.  R., 
72  111.  34. 

2103.  ACTION  FOR  PENALTY — LIMITATION.     §  13.  Every 
engineer  or  other  person  having  charge  of  such  engine,  vio- 
lating the  provisions  of  the  preceding  section,  shall  be  liable 
to  a  penalty  of  two  hundred  dollars  for  each  offense,  to  be 
recovered  in  an  action  of  debt  in  the  name  of  the  people  of 
the  state  of  Illinois,  and  the  corporation  on  whose  road  such 
offense  is  committed,  shall  be  liable  to  a  penalty  of  not  ex- 
ceeding two  hundred  dollars,  to  be  recovered  in  like  manner, 
the  amount  so  recovered  to  be  paid  into  the  treasury  of  the 
county  in  which  the  offense  occurs,  but  no  recovery  shall  be 
had  in  any  case  for  any  offense  committed  more  than  sixty 
days  prior  to  the  commencement  of  the  action.     The  pro- 
visions of  this  and  of  the  preceding  section  shall  extend  to 
and  govern  all  cases  of  neglect  or  failure  to  stop  the  train  as 
required  by  law  before  passing  any  bridge  or  railroad  cross- 
ing, whether  occurring  before  or  after  the  said  provisions 
shall  take  effect,  and  no  act  or  part  of  an  act  inconsistent 
with  such  operation  and  effect  being  given  to  this  law  shall 
in  any  way  apply  hereto.     [As  amended  by  act  June  19, 
1885.     In  force  July  1, 1885.  L.  1885.  E.  S.  1887,  p.  1015,  §  76; 
S.  &  C.,  p.  1938,  §  76;  Cothran,  p.  1155,  §  62;  3  S.  &  C.,  p.  442.  ] 

2104.  EFFECT  OF  CHANGE  OF  THE  LAW— on  action  for  penalty. 
The  change  of  §§  12  and  13  of  the  railroad  law  in  respect  to  the  stop- 
ping of  trains  before  crossing  other  railways,  and  as  to  the  penalty  for 
a  failure  to  perform  the  duty,  had  the  effect  to  extinguish  all  right  of 
action  in  a  suit  brought  under  the  old  law,  although  it  did  not  repeal 
§§  2  and  4  of  ch.  131  of  the  revised  statutes.     Mix  v.  People,  116  111.  502. 

2105.  The  people  not  bound  to  unite  two  causes  of  action  and 
defeat  the  jurisdiction  of  a  justice  of  the  peace.    /.  &  St.  L.  R.  R.  v. 
People,  91  111.452. 

2106.  A  justice  of  the  peace  has  jurisdiction  of  an  action  to  recover 
the  penalty  provided  for  in  this  section  of  the  statute.    Ib. 

2107.  A  suit  in  the  name  of  the  people  of  the  state  of  Illinois  for 


AND  EMINENT  DOMAIN.  255 

the  use  of  C.  D.  against  a  railway  company  to  recover  the  penalty,  will 
not  be  dismissed  because  brought  for  the  use  of  an  individual.    Ib. 

2108.  In  an  action  to  recover  the  penalty,  the  neglect  of  the  ser- 
vants of  the  company  to  obey  orders,  is  no  defence.    Ib . 

2109.  A  recovery  in  such  a  case  is  a  bar  to  a  future  action  to  recover 
the  same  penalty.    Ib. 

2110.  If  the  people  recover  judgment  they  are  entitled  to  judgment 
for  costs.    Ib . 

2111.  OBSTRUCTION  or  HIGHWAY — CABS  ON  TRACK.  §  14. 
No  railroad  corporatioD  shall  obstruct  any  public  highway 
by  stopping  any  train  upon,  or  by  leaving  any  car  or  loco- 
motive engine  standing  on  its  track,  where  the  same  inter- 
sects or  crosses  such  public  highways,  except  for  the  purpose 
of  receiving  or  discharging  passengers,  or  to  receive  the 
necessary  fuel  and  water,  and  in  no  case  to  exceed  ten  min- 
utes for  each  train,  car  or  locomotive  engine.  [R.  S.  1887,  p. 
1016,  §  77;  S.  &  C.,  p.  1939,  §  77;  Cothran,  p.  1155,  §  63.] 

2112\  Liability  of  railway  company  for  obstructing  a  public  road 
to  plaintiff's  inn.  /.  C.  R.  R.  v  White,  18  111.  164. 

2113.  Liability  of  railway  company  for  breach  of  an  ordinance  to 
prevent  the  obstruction  of  a  highway  by  leaving  freight  cars  standing 
on  the  same.    Gr.  Western  R   R.\.  Decatur,  33  111.  381;  III.  C.  R. 
R.  v.   Galena,  40  111.  344;  T.,  P.  &W.  Ry.  v.  Town  of  Chenoa,  43 
111.  209. 

2114.  This  section  does  not  apply  where  the  highway  is  obstructed 
by  cars  left  standing  on  the  same  by  strangers,  without  the  knowledge 
or  assent  of  the  company.     Peoria,  Decatur  &  Evansmlle  R.  R.v. 
Lyons,  9  B.  350. 

2115.  If  a  railway  company  unnecessarily  obstructs  the  streets  of 
a  town  with  its  cars  contrary  to  an  ordinance,  it  will  be  liable  to  the 
penalty  prescribed  for  so  doing.    /.  C.  R.  R.  v.  Galena,  40  111.  344. 

2116.  Ordinance  that  "no  person  shall  put  or  cause  to  be  put  in  any 
street,  sidewalk  or  other  public,  place  within  the  city,  any  dust,  dirt, 
filth,  shavings  or  other  rubbish  or  obstructions  of  any  kind,"  is  broad 
enough  to  embrace  the  obstruction  of  a  street  by  a  railroad  company 
with  its  cars.    Ib. 

2117.  Where  an  ordinance  prohibited  a  railway  company  from 
obstructing  a  public  street,  by  permitting  its  cars  to  remain  station- 
ary therein  for  more  than  fifteen  minutes,  but  referred  to  another 
ordinance,  which  as  copied  into  the  record,  bore  date  subsequently  to 
the  first:    Held,  that  the  town  failed  to  establish  a  right  of  recovery. 
T. ,  P.  &  W.  Ry.  v.  Chenoa,  43  111.  209. 

2117a.  The  corporation  and  its  engineer  or  conductor  are  placed 
under  the  same  liability  as  respects  the  fine,  and  the  liability  of  the 
former  is  not  limited  by  the  recovery  against  the  other.  T.,  W.  &  W. 
Ry.  v.  People,  81  111.  141. 

2118.  STONING,  ETC.,  TRAIN.  Any  person  who  shall 
throw  any  stone  or  other  hard  substance  at  any  railroad  car, 
train  or  locomotive,  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof,  shall  be  fined  in  any  sum  not  more 
than  $200,  and  shall  stand  committed  to  the  county  jail  until 
such  fine  and  costs  shall  be  paid.  [E.  S.  1887,  p.  1016,  §  77; 
S.  &  C.,  p.  1939,  §  77;  Cothran,  p.  1155,  §  63.] 


256  RAILROADS,  WAREHOUSES, 

2119.  PENALTY  FOR  OBSTRUCTING  HIGHWAY.  §  15.  Every 
engineer  or  conductor  violating  the  provisions  of  the  preced- 
ing section  shall,  for  each  offense,  forfeit  the  sum  of  not  less 
than  $10  nor  more  than  $100,  to  be  recovered  in  an  action  of 
debt,  in  the  name  of  the  people  of  the  state  of  Illinois,  for 
the  use  of  any  person  who  may  sue  for  the  same,  and  the  cor- 
poration on  whose  road  the  offense  is  committed  shall  be 
liable  for  the  like  sum.  [E.  S.  1887,  p.  1016,  §  78;  S.  &  C., 
p.  1939,  §  78;  Cothran,  p.  1155,  §  64.] 

2120.  The  intention  is  to  subject  the  engineer,  conductor  and  the 
company  indifferently  to  a  tine  of  not  less  than  $10,  nor  more  than  $100 
for  the  obstruction,  and  not  that  the  corporation  shall  be  liable  for 
the  like  sum  for  which  the  engineer  or  conductor  shall  have  been 
convicted.    T.W.&  W.Ry.\.  People,  81  111.  141 . 

2121.  The  state's  attorney  cannot  maintain  the  suit  in  the  name  of 
the  people  for  his  use,  for  the  penalty.    People  v.  Wabash.  St.  L.  &  P. 
R.  R.,  12  B.  263.  ' 

2122.  MINORS  TO  KEEP  OFF  CARS.  §  17.  No  person  or 
minor  shall  climb,  jump,  step,  stand  upon,  cling  to,  or  in  any 
way  attach  himself  to  any  locomotive  engine  or  car,  either 
stationary  or  in  motion,  upon  any  part  of  the  track  of  any 
railroad,  unless  in  so  doing  he  shall  be  acting  in  compliance 
with  law,  or  by  permission,  under  the  lawful  rules  and  regu- 
lations of  the  corporation  then  owning  or  managing  such  rail- 
road. [R.  S.  1887,  p.  1016,  §  79;  S.  &  C.,  p.  1939,  §  79;  Coth- 
ran, p.  1155,  §  65.] 

2123.  This  section  applies  only  to  climbing,  stepping,  standing 
upon,  clinging  to  or  in  any  way  attaching  one's  self  to  a  locomotive 
engine  or  car,  either  stationary  or  in  motion  on  the  track.    It  does  not 
affect  the  question  of  the  negligence  of  a  person  who  attempts  to  pass 
under  a  freight  car  on  the  invitation  of  the  conductor.    C.,  B.  &  Q.  R. 
R.  v.  Sykes,  96  111.  162. 

2124.  A  violation  of  this  section  will  not  absolve  the  company 
from  the  consequences  of  its  act,  unless  directly  contributing  to  the 
injury.     Case  of  a  deaf  mute  less  than  fourteen  years  old  injured, 
held,  not  within  the  statute.    Lammert  v.  C.  &  A.  R.  R.,Q  B.  388. 

2125.  RAILROAD  AGENT,  ETC.,  TO  MAKE  COMPLAINT.    §  18. 
Whenever  any  officer,  agent,  or  employe  of  any  railroad  cor- 
poration shall  have  any  information  that  any  person  or  minor 
has  violated  any  of  the  provisions  of  the  preceding  section, 
and  has  thereby  endangered  himself,  or  caused  reasonable 
alarm  to  others,  said  officer,  agent,  or  employe  shall,  without 
unnecessary  delay,  make  complaint  of  such  offense  against 
such  person  or  minor  before  some  justice  of  the  peace.     [R. 
S.  1887,  p.  1016,  §80;  S.  &  C.,  p.  1939,  §80;  Cothran,  p.  1155,  §  66. 

2126.  PENALTY.     §  19.  Any  person  or  minor  who  shall 
violate  any  of  the  provisions  of  the  seventeenth  section  of 
this  act  shall  be  punished  by  a  fine  not  exceeding  $25,  to  be 
recovered  in  an  action  of  debt,  in  the  name  of  the  people  of 


AND  EMINENT  DOMAIN.  257 

the  state  of  Illinois,  before  a  justice  of  the  peace,  or,  upon 
conviction,  by  imprisonment  in  the  county  jail,  or  other  place 
of  confinement,  for  a  period  not  exceeding  twelve  hours. 
[E.  S.  1887,  p.  1016,  §  81;  S.  &  C.,  p.  1939,  §  81;  Cothran,  p. 
1156,  §  67. 

2127.  A  minor  under  fourteen  years  of  age,  presumed  ignorant  of 
this  law,  and  therefore  proof  of  capacity  to  commit  crime  is  neces- 
sary. Lammert  v .  C .  &  A .  E . R . ,  9  Bradw.  388 . 

2128.  THREE   PRECEDING  SECTIONS  POSTED.    §  20.  The 
several  railroad  corporations  in  this  state  shall,  without  un- 
necessary delay,  cause  printed  copies  of  the  three  preceding 
sections  of  this  act  to  be  kept  posted  in  conspicuous  places  at 
all  their  stations  along  their  lines  of  railroad  in  this  state. 
Every  railroad  corporation  that  shall  neglect  to  post,  and 
keep  posted,  such  notices  as  required  by  this  section,  shall, 
for  each  offense,  forfeit  the  sum  of  $50,  to  be  recovered  in  an 
action  of  debt,  in  the  name  of  the  people  of  the  state  of  Illi- 
nois.    [E.  S.  1887,  p.  1016,  §  82;  S.  &  0.,  p.  1940,  §  82;  Coth- 
ran, p.  1156,  §68.] 

2129.  FREIGHT  CARS  BEHIND  PASSENGER  TRAINS — PRO- 
HIBITED.    §  21.  In  no  train  shall  freight,  merchandise  or  lum- 
ber cars  be  run  in  the  rear  of  passenger  cars,  and  if  such  cars, 
or  any  of  them,  shall  be  so  run,  the  officer  or  agent  who  so 
directed,  or  knowingly  suffered  such  arrangement  to  be  made, 
shall  each  be  deemed  guilty  of  a  misdemeanor,  and  punished 
accordingly.     [2d  L.  1849,  p.  26,  §  37.     ( Penalty  reduced. ) 
E.  S.  1887,  p.  1016,  §  83;  S.  &  C.,  p.  1940,  §  83;  Cothran,  p. 
1156,  §  69.] 

2130.  FURNISHING  MEANS  OF  TRANSPORTATION — KEEPING 
DEPOTS  OPEN  AND  LIGHTED  AND  WARMED.     §  22.     Every  rail- 
road corporation  in  the  state  shall  furnish,  start  and  run  cars 
for  the  transportation  of  such  passengers  and   property  as 
shall,  within  a  reasonable  time  previous  thereto,  be  ready  or 
be  offered  for  transportation  at  the  several  stations  on  its 
railroads  and  at  the  junctions  of  other  railroads,  and  at  such 
stopping  places  as  may  be  established  for  receiving  and  dis- 
charging way-passengers  and  freights;  and  shall  take,  receive, 
transport  and  discharge  such  passengers  and  property,   at, 
from  and  to  such  stations,  junctions  and  places,  on  and  from 
all  trains  advertised  to  stop  at  the  same  for  passengers  and 
freight,  respectively,  upon  the  due  payment,  or  tender  of  pay- 
ment of  tolls,  freight  or  fare  legally  authorized  therefor,  if 
payment  shall  be    demanded,  and  such  railroad  companies 
shall  at  all  junctions  with  other  railroads,  and  at  all  depots 
where  said  railroad  companies  stop  their  trains  regularly  to 
receive  and  discharge  passengers  in  cities  and  villages,  for  at 
least  one-half  hour  before  the  arrival  of,  and  one-half  hour 

—18 


258  RAILROADS,  WAREHOUSES, 

after  the  arrival  of  any  passenger  train,  cause  their  respective 
depots  to  be  open  for  the  reception  of  passengers;  said  depots 
to  be  kept  well  lighted  and  warmed  for  the  space  of  time 
aforesaid.  [In  lieu  of  2d  Laws  of  1849,  p.  26,  §  35;  Laws  of 
1883,  p.  125.  E.  S.  1887,  p.  1017,  §  84;  S.  &  C.,  p.  1940,  §  84; 
Cothran,  p.  1156,  §  70. 

2130a.  A  railway  company  is  bound  to  construct  its  road  to  and 
from  the  several  points  named  in  its  charter,  and  when  built  to  run  its 
trains  over  its  entire  line  in  such  manner  as  to  afford  reasonable 
facilities  for  the  prompt  and  efficient  transaction  of  such  legitimate 
business  as  may  be  offered  on  any  and  every  part  of  the  road;  and  this 
obligation  is  binding  on  its  successor.  People  v.  L.  &  N.  R.  R.,  120 
111.  48. 

21306.  Contract  to  furnish  passenger  facilities  at  a  particular  point 
is  personal  and  does  not  bind  company's  successor.  Ib. 

2131.  ACCOMMODATIONS  AT  STATIONS.    Duty  of  railway  compa- 
nies to  furnish  safe  and  convenient  platforms  and  approaches  to  their 
passenger  coaches.    C.  &  A.  R.  R.  v.  Wilson,  63  111.  167 .    Duty  to  fur- 
nish safe  places  for  alighting  from  cars.    C.,  R.  I.  &  P.  R.  R.  v.  Ding- 
man,  1  Bradw.  162. 

2132.  Company  setting  a  passenger  down  upon  a  platform  used  by 
it  in  connection  with  another  company,  liable  for  an  injury  to  him 
while  waiting  for  passage  on  the  other  road,  caused  by  want  of  proper 
safeguards  or  lights.     W.,  St.  L.  &  P.  Ry.  v.  Wolff,  13  Bradw,  437;  Sey- 
mour \.  C.,B.  &  Q.R.  R.,3  Biss.  43. 

2133.  Stations  and  depots  must  be  arranged  with  care,  properly 
lighted  when  dark,  and  made  safe  and  convenient.  Ordinary  care  only 
required,  except  in  favor  of  passengers.    T.,  W.  &  W.  Ry.  v.  Gfrush,  67 
111.262. 

2134 .  Injury  of  one  looking  after  freight  stepping  into  a  hole  in 
platform,  company  held  liable.    Ib. 

2135.  Liability  for  injury  caused  by  defective  platform.    McDon- 
ald v.  Ch.&N.  W.  R.  R.,  26  Iowa  124;  Dobiecki  v.  Sharp,  88  N.  Y. 
203;  Louismlle  &  Nashville  R.  R.  v.  Wolfe,  80  Ky.  82:  Held,  liable  for 
not  keeping  it  properly  lighted.    Patten  v.  Ch.  &  N.   W.  Ry.,  32 
Wis.  524. 

2136.  Company  liable  for  a  personal  injury  caused  by  the  narrow- 
ness of  the  platform.    Ch.  &  A.  R.  R.  v.  Wilson,  63  111.  167. 

2137.  Liability  to  servant  for  injury  caused  by  awning  of  station 
house  being  too  near  the  cars  passing.    2.  C.  R.  R.  v.  Welch,  52  111. 
183. 

2138.  As  to  duty  in  respect  to  platform  see  C.  &  N.  W.  Ry.  v. 
Scates,  90  111.  586;  Liscomb  v.  New  Jersey  R.  R.  &  Transp.  Co.  6  Lans. 
75;  GUllis  v.  Penn.  R.R.,W¥a.  St.  129. 

2139.  Duty  to  keep  open  a  safe  passage  to  and  from  passenger 
trains.    C.&N.W.Ry.v.  Coss,  73  III.  394;  Barrett  v.  Black,  56  Me. 
498;  Caswell  v.  B.  &  W.  R.  R.,m  Mass.  194. ;    ' 

2140.  DUTY  TO  FURNISH  CARS  FOR  TRANSPORTATION.    Company 
not  bound  under  all  circumstances  to  furnish  a  sufficient  number  of 
cars,  so  that  all  applying  may  have  seats.    C.  &  N.  W.  Ry.  v.  Carroll, 
5  Bradw.  201.    Duty  to  furnish  suitable  sitting  accommodation  for 
its  ordinary  number  of  passengers.    Ib. 

2141.  Must  furnish  reasonable  and  ordinary  facilities  for  transpor- 
tation, such  as  will  meet  the  ordinary  demands  of  the  public.    6f.  & 
C.  U.  R.  R.  v.  Rae,  18  111.  488.;  0.  &  M.  Ry.  v.  People,  120  111.  200. 


AND  EMINENT  DOMAIN.  259 

2142.  DELAY  IN  TRANSPORTING.    Liability  for  delay  in  trans- 
porting freight.    /.  C.  R.  R.  v.  McClellan,  54  111.  58;  T.,  W.  &  W.  Ry. 
v.  LockJiart,  71  111.  627;  I.C.  R.  R.  v.  Waters,  41  111.  73;  Hutchinson  on 
Carriers,  §292. 

2143.  EXCUSE  FOR  DELAY  .    /.  C.  R.  R.  v.  McClellan,  54  111.  58;  /. 
&  8t.L.R.R.\.  Juntgen,10  Bradw.  295;  Hutchinson  on  Carriers, 
§293. 

2144.  Cannot  delay  transportation  of  goods  already  delivered  and 
waiting  shipment,  in  order  to  receive  and  forward  other  goods.   Great 
Western  R.R.  v.  Burns,  60  111.  284;  Ch.&N.  W.Ry.   v.  People,  56 
111.  365. 

2145.  PENALTY  FOE  BREACH  OF  PRECEDING  SECTION.  §23. 
In  case  of  the  refusal  of  such  corporation  or  railroad  com- 
pany, or  its  agents,  to  take,  receive  and  transport  any  person 
or  property,  or  to  deliver  the  same  within  a  reasonable  time, 
at  their  regular  or  appointed  time  and  place,  or  to  keep  their 
said  depots  open,  lighted  and  warmed  according  to  the  pro- 
visions of  the  preceding  section  of  this  act,  such  corporation 
or  railroad  company  shall  pay  to  the  party  aggrieved,  treble 
the  amount  of  damages  sustained  thereby,  with  costs  of  suit; 
and  in  addition  thereto,  said  corporation  or  railroad  company 
shall  forfeit  a  sum  of  not  less  than  twenty-five  dollars  nor 
more  than  one  thousand  dollars  for  each  offense,  to  be  recov- 
ered in  an  action  of  debt,  in  the  name  of  the  people  of  the 
state  of  Illinois — the  treble  damages  for  the  use  of  the  party 
aggrieved,  and  the  forfeiture  for  the  use  of  the  school  fund 
of  the  county  in  which  the  offense  is  committed.  [Laws  of 
2<1  1849,  p.  26,  §  36,  as  amended  by  act  of  1883,  p.  125.  In 
force  July  1,  1883.  E.  S.  1887,  p.  1017,  §  85;  S.  &  0.,  p.  1940, 
§85;Cothran,  p.  1156,  §  71.] 

2146.  The  treble  damages  is  in  the  nature  of  a  penalty  and  can 
only  be  recovered  when  specially  declared  for  in  the  manner  prescribed 
by  the  statute.    /.  &  St.  L.  R.R.  &  Coal  Co. v. People,  19  B.  141. 

2147.  STATUTE  TO  BE  STRICTLY  CONSTRUED.    The  language  "as 
shall  within  a  reasonable  time  previous  thereto  be  ready  or  be  offered 
for  transportation,"  does  not  include  coal  in  the  earth  to  be  dug  and 
raised  after  the  cars  are  furnished.    Ib. 

2147a.  LIMITATION.  The  two-year  limitation  law  is  a  good  plea 
to  an  action  seeking  treble  damages.  So  held  where  the  treble  dam- 
ages are  set  up  in  an  amendment  to  the  declaration.  /.  &St.  L.  R.  R. 
&  Coal  Co.  v.  People,  19  Bradw.  141 . 

2148.  TEXAS  CATTLE.  §  23|.  In  any  suit  brought  for  a 
violation  of  "An  act  concerning  the  transportation  of  Texas 
or  Cherokee  cattle,"  approved  April  16,  1869,  the  consignor 
of  any  live  stock,  the  bringing  of  which  into  this  state  shall 
constitute  the  offense  created  by  this  act,  if  he  be  a  citizen  of 
this  state,  and  if  not  the  consignee,  if  he  shall  have  knowl- 
edge of  and  consent  to  such  consignment,  of  any  such  live 
stock,  shall  be  made  a  joint  defendant  with  any  railroad  or 
transportation  company  which  may  be  sued  for  the  offense 


260  BAILROADS,  WAREHOUSES, 

aforesaid,  and  the  said  consignor,  or  consignee,  shall  suffer 
jointly  any  penalty  passed  upon  any  such  railroad  or  trans- 
portation company  for  any  violation  of  the  act  aforesaid. 
Any  action  brought  for  a  violation  of  the  act  aforesaid,  must 
be  commenced  within  the  eighteen  months  next  succeeding 
the  bringing  of  the  cattle  into  this  state,  on  account  of  which 
the  action  may  be  brought.  Any  railroad  company  who 
shall  transport  any  Texas,  Cherokee  or  diseased  cattle  in 
violation  of  the  aforesaid  act,  without  knowing  them  to  be 
such,  may  recover  from  any  consignor  or  consignee  any  sum 
of  money  it  may  be  compelled  by  the  judgment  of  any  court 
to  pay  for  the  transportation  of  such  cattle,  and  the  record 
of  the  judgment  against  the  said  company  shall,  in  any  suit 
against  any  such  consignor  or  consignee,  be  evidence  of  the 
amount  of  damages  to  be  recovered,  with  interest  from  the 
time  of  payment:  Provided,  that  nothing  in  this  section 
shall  be  construed  to  affect  any  right  existing  or  suit  pend- 
ing. [E.  S.  1887,  p.  1017,  §  86;  S.  &  C.,  p.  1941,  §  86; 
Cothran,  p.  1157,  §  72.  J 

See  also,  R.  S.  1887.  p.  141,  §§  15-26;  S.  &  C.,  p.  282,  §  12-23.  Overruled 
and  superceded  decisions  on  Sangamon  Distilling  Co.  v.  Young,  77 
111.  197;  Smith  v.  Race,  76  111.  490;  Frye  v.  Chicago,  &c.,  73  111.  399; 
Ch.  &  A.  R.  R.  v.  Gassaway,  71  111.  570;  Hatch  v.  Marsh,  71  111.  370; 
Dams  v.  Walker,  60  111.  452;  Yeazel  v.  Alexander,  58  111.  254;  Stevens 
v.  Brown,  58  111.  289;  Somerville  v.  Marks,  58  111.  371. 

2149.  CONSTITUTIONALITY.    The  statute  relating  to  Texas  and 
Cherokee  cattle,  and  making  a  party  having  them  liable  for  diseases 
communicated  by  them,  is  unconstitutional.    Jarvis  v.  Riggin,  94 
111.  164. 

2150.  Act  to  prevent  the  importation  of  Texas  cattle  into  this 
state  is  unconstitutional.    Salzenstein  v.  Mavis,  91  111.  391,  overruling 
Teazel  V.Alexander,  58  111.  254. 

2151.  The  act  is  unconstitutional  as  being  repugnant  to  §  8  art. 
1,  of  the  constitution  of  the  United  States.    Ch.  cfe  A.  R.  R.  v.  Ericlt- 
son,  91  111.  613;  Railroad  Co.  v.  Husen,  5  Otto  (95  U.  S.)  465. 

2152.  LIABILITY  FOR  SPEED  IN  EXCESS  OF  THAT  LIMITED 
BY  ORDINANCE.  §  24.  Whenever  any  railroad  corporation 
shall  by  itself  or  agents,  run  any  train,  locomotive  engine,  or 
car,  at  a  greater  rate  of  speed  in  or  through  the  incorporated 
limits  of  any  city,  town  or  village,  than  is  permitted  by  any 
ordinance  of  such  city,  town  or  village,  such  corporation  shall 
be  liable  to  the  person  aggrieved  for  all  damages  done  the 
person  or  property  by  such  train,  locomotive  engine  or  car; 
and  the  same  shall  be  presumed  to  have  been  done  by  the 
negligence  of  said  corporation  or  their  agents;  and  in  addi- 
tion to  such  penalties  as  may  be  provided  by  such  city,  town 
or  village,  the  person  aggrieved  by  the  violation  of  any  of  the 
provisions  of  this  section,  shall  have  an  action  against  such  cor- 
poration so  violating  any  of  the  provisions  to  recover  a  penalty 
of  not  less  than  one  hundred  dollars  ($100)  nor  more  than 


AND  EMINENT  DOMAIN.  261 

two  hundred  dollars  ($200),  to  be  recovered  in  any  court  of 
competent  jurisdiction;  said  action  to  be  an  action  of  debt, 
in  the  name  of  the  people  of  the  state  of  Illinois,  for  the  use 
of  the  person  aggrieved;  but  the  court  or  jury  trying  the  case 
may  reduce  said  penalty  to  any  sum,  not  less,  however,  than 
fifty  dollars  ($50),  where  the  offense  committed  by  such  vio- 
lation may  appear  not  to  be  malicious  or  willful:  Provided, 
that  no  such  ordinance  shall  limit  the  rate  of  speed,  in  case 
of  passenger  trains  to  less  than  ten  miles  per  hour,  nor  in 
any  other  case  to  less  than  six  miles  per  hour.  [Laws  of 
1865,  p.  103,  §§  1,  2  and  3,  as  amended  by  act  of  May  22, 
1877.  In  force  July  1,1877.  Laws  of  1877,  p.  165.  B.  S.  1887, 
p.  1017,  §  87;  S.  &  C.,  p.  1941,  §  87;  Cothran,  p.  1157,  §  73.] 

2153.  FRIGHTENING  HORSE.    Where  a  railway  train  is  run  within 
a  city  at  a  speed  in  excess  of  that  allowed  by  ordinance,  whereby  the 
horses  of  a  person  about  to  cross  the  railway  track  are  frightened,  and 
his  carriage  is  upset,  and  he  is  injured  in  person  and  property,  the 
company  operating  such  train  will  become  liable  to  the  party  so  ag- 
grieved, for  the  penalty  provided  for  in  §  2  of  the  act  relating  to 
railroads,  although  the  train  may  not  have  struck  such  person  or  his 
horses  or  carriage .     Ch .  &  E.  III.  R .  R.  v.  People,  120  111.  667 . 

2154.  In  an  action  to  recover  of  a  railway  company  the  penalty 
given  by  §  62  of  the  railroad  act,  it  is  not  necessary  for  the  plaintiff 
to  show  that  he  was  injured  by  actual  collision  with  the  train,  running 
at  a  greater  speed  than  allowed  by  law.    It  is  sufficient  for  a  recovery, 
to  show  that  the  train  was  run  faster  than  was  allowed  by  ordi- 
nance, and  that  in  consequence  thereof,  he  was  aggrieved,  by  the 
frightening  of  his  team.    Ib. 

2155.  CONSTITUTIONALITY  OF  STATUTE.    The  act  of  1865  making 
railway  companies  liable  for  all  damages  done  to  any  individual,  and 
for  stock  killed  by  any  train  or  engine,  in  an  incorporated  city  or 
town,  where  their  trains  are  permitted  to  be  run  at  a  greater  speed 
through  such  city  or  town,  than  is  permitted  by  ordinance,  is  not 
unconstitutional.    It  is  no  objection  that  the  statute  gives  the  penalty 
to  the  injured  party.    C.,  R.  I.  &  P.  R.  R.  v.  Reidy,  66  111.  43. 

2156.  SAME— police  regulation.    A  chatter  to  operate  railroads  by 
steam  power  does  not  confer  unlimited  discretion  in  the  regulation  of 
the  speed  of  trains.    The  power  to  regulate  the  speed  of  trains,  as  a 
police  power  is  inherent  in  the  state  and  cannot  be  granted  away.    T., 

P.  &  W.  Ry.  v.  Deacon,  63  111.  91;  C.,  B.  &  Q.R.  R.,\.  Haygerty,  67 
JL11.  lit). 

2157.  BEGULATION  or  SPEED  BY  ORDINANCE — sufficiency.     An 
ordinance  "that  it  shall  be  unlawful  for  any  railroacT  company,  by 
themselves  or  their  agents,  to  run  at  a  greater  rate  of  speed  within  the 
corporate  limits  of  the  town  of  C,  than  live  miles  per  hour,"  and  pro- 
viding a  penalty  for  its  violation  of  not  less  than  810,  nor  more  than 
$100,  while  informal,  is  valid.    T.,P.  &  W.  Ry.  v.  Deacon,  63  111.  i)l. 

2158.  SAME—prem?nption.    Greater  speed  than  is  allowed  by  ordi- 
nance raises  a  presumption  of  negligence  as  the  cause  of  the  injury. 
Where  proof  of  contributory  negligence  is  shown,  this  presumption  is 
rebutted,  and  the  plaintiff  can  recover  only  when  his  negligence  is 
slight  and  that  of  defendant  gross.    L.  S.  &  M .  S.  R.  R.  v.  Berlinh, 
2  JBradw.  427. 

2159.  ORDINANCE,  to  raise  the  statutory  presump tion  of  negli- 
gence, must  conform  to  the  statute.    If  it  limits  the  speed  of  a  passen- 


262  BAILROADS,  WAREHOUSES, 

§er  train  to  less  than  ten  miles  per  hour,  it  is  not  admissible  as  evi- 
ence.    C.,  B.  &  Q.  R.  R.  v.  Dougherty,  12  Bradw.  181. 

2160.  Killing  stock  in  a  town  does  not  raise  a  presumption  that  the 
train  was  running  at  a  prohibited  rate  of  speed;  but  proof  that  train 
was  run  in  the  town  at  a  greater  speed  than  that  allowed  by  a  valid 
ordinance,  and  that  the  injury  occurred  while  the  train  was  so  run- 
ning, makes  a  case  of  presumptive  negligence.    C.&A.R.R.  v.  Engle, 
58  111.  381 

2161 .  If  stock  is  killed  by  a  train  while  running  through  an  incor- 
porated town  faster  than  is  allowed  by  ordinance,  the  killing  will  be 
presumed  to  have  been  done  through  negligence  of  the  company;  but 
this  presumption  may  be  rebutted.    T.,P.&  W.  Ry.  v.  Deacon,  63 
111.91. 

2162.  An  instruction  that  if  the  cow  of  the  plaintiff  was  killed 
within  the  corporate  limits  by  a  train  of  the  defendant,  and  that  such 
train  was,  at  the  time  of  the  killing,  being  run  at  a  greater  rate  of 
speed  than   that  prescribed   by   the    ordinance   of  the  town,  then 
the  defendant  is  presumed  to  have  been  guilty  of  negligence  in  kill- 
ing the  cow,  held,  not  erroneous.    C., B.  &  Q.  R.  R.  v.  Haggerty,  67 
111.  113. 

2163.  LIABILITY  .      Where  a  person  is  killed  by  a  train  running 
much  faster  than  is  allowed  by  ordinance,  and  no  bell  is  rung  or 
whistle  sounded,  the  company  will  be  liable,  unless  the  proof  shows 
the  injury  was  not  the  result  of  such  negligence.    St.  L.,  F.  &T.  H. 
R.R.v.  Morgan,  12  Bradw.  256. 

2164 .  SAME  —  contributory  negligence.   Although  a  train  was  run- 
ning through  a  town  at  a  higher  speed  than  allowed  by  ordinance,  yet 
if  the  deceased  was  guilty  of  gross  negligence  contributing  to  his 
death,  no  recovery  can  be  had.     W.,St.  L.&P.Ry.\.  Weisbeck,  14 
Bradw.  525. 

2165.  ORDINANCE  — power  to  pass.     Power  in  municipal  corpora- 
tion to  define  and  abate  nuisances,  &c.,  authorizes  an  ordinance  pro- 
hibiting the  running  of  engines,  &c.,  within  its  limits,  exceeding  six 
miles  per  hour.    C.,  B.  &  Q-  R.  R.  v.  Haggerty,  67  111.  113. 

2166.  If  an  ordinance  prohibits  a  speed  of  more  than  six  miles  an 
hour,  the  running  of  a  train  at  fifteen  miles  an  hour,  resulting  in  the 
death  of  one  wrongfully  on  the  track,  will  make  the  injury  willful  or 
wanton,  and  render  the  company  liable.    I.  C.R.  R.  v.Hetherington, 
83  111.  510. 

2167.  It  is  gross  negligence  to  run  a  train  through  a  town  at  a 
speed  prohibited  by  law,  and  if  death  of  a  person  results  therefrom 
the  company  will  be  liable.     C.  &  A.  R.  R.  v.  Seeker,  84  111.  483. 

2168.  Engineer  running  his  train  in  a  city  at  twenty  miles  an 
hour,  the  ordinance  limiting  it  to  eight,  and  seeing  a  switchman  on  or 
near  the  track,  will  have  no  right  to  assume  that  he  will  get  out  of 
the  way,  or  keep  off  the  track  and  avoid  danger,  as  might  be  if 
the  train  was  being  run  at  only  eight  miles  an  hour.    L.  8.  &M.S.R. 
R.  v.  O'Connor,  115  111.  254. 

2169.  SPEED  AS  NEGLIGENCE — in  absence  of  ordinance.    Running 
train  at  a  high  rate  of  speed,  is  not  of  itself  reckless  or  wanton  disre- 
gard of  the  public  safety,  or  a  willful  attempt  to  injure,  where  there 
is  no  ordinance  violated.    Garland  v.  C.  &  N.  W.  Ry.,  8  Bradw.  571. 

2170.  The  general  law  of  the  state  imposes  no  restrictions  on  rail- 
way companies  as  to  the  rate  of  speed  their  trains  may  run.    If  not 
prohibited  by  ordinance,  they  may  adopt  such  rate  of  speed  as  they 
may  desire,  provided  it  be  reasonably  safe  for  its  passengers  and  the 
public.     C.  &  A.  R.  R.  v.  Robinson,  9  Bradw.  89;  W.,  St.  L.  &  P.  Ry.  v. 


AND  EMINENT  DOMAIN.  263 

NeiUrk,  13  Bradw.  387;  same  case,  15  Bradw.  172;  C.,  R.l.&P.Ry. 
v.  Givens,  18  Bradw.  404;  C.,  B.  &  Q.  R.  R.  v.  Lee,  68  111.  576. 

2171.  A  railway  company  may  run  its  trains  at  any  speed  it 
chooses,  so  that  when  taken  in  connection  with  the  character  of  the 
road,  its  grades,  curves,  &c.,  it  appears  not  to  increase  the  ordinary 
risks  of  travel.    So  long  as  the  increased  speed  adds  nothing  to  the 
risks  and  danger  of  the  traveling  public,  the  courts  have  no  right  to 
interfere.    I.,B.&  W.Ry.  v.  Hall,  106  111.  371. 

2172.  Speed  in  the  transit  and  punctuality  in  the  arrival  and  con- 
nections of  trains,  is  required  and  is  lawful.    Speed  may  be  regulated 
by  the  companies  to  suit  the  times  and  places.    C.&M.R.R.  v. 
Patchin,  16  111.  198. 

2173.  NEGLIGENCE  IN  SPEED — depends  on  circumstances.    A  rate 
of  speed  that  would  be  highly  dangerous,  or  even  reckless  in  a  popu- 
lous city  with  numerous  street  crossings,  may  not  be  hazardous  in 
leaving  a  town,  after  reaching  its  sparsely  settled  suburbs .    P.,  D.  &E. 
Ry.v.  Miller,  11  Bradw.  375. 

2174.  A  railway  company  must  conform  the  speed  of  its  trains  to 
the  safety  of  the  public  at  all  places  in  a  city  where  persons  have  an 
equal  right  to  travel  with  it.     C.,  B.  &  Q.  R.R.v.  Dougherty,  12  Brad. 
181. 

2175.  Whether  the  rate  of  speed  at  the  time  a  collision  occurred, 
was  dangerous  and  negligent,  is  a  question  of  fact.     W.,  St.L.  &  P. 
Ry.  v.  Hicks,  13  Bradw.  407. 

2176.  Where  a  traveler  at  a  highway  crossing  cannot  see  the  ap- 
proach of  a  train,  owing  to  a  deep  cut  or  other  cause,  the  company 
should  run  at  a  low  rate  of  speed  and  give  the  statutory  signals.    C., 
B.&Q.R.R.  v.  Triplett,  38  111.  482. 

2177.  Whether  a  train  which  killed  a  cow  was  run  at  too  great  a 
speed  through  a  populous  town,  so  as  to  amount  to  negligence,  is  a 
question  of  fact.    T.,  P.  &  W.  Ry.  v.  Foster,  43  111.  415. 

2178.  It  is  great  negligence  in  a  railway  company  to  run  one  of  its 
fastest  trains  with  unabated  speed  through  a  town,  where  persons  are 
liable  at  all  times  to  be  upon  its  track;  and  if  while  so  running,  it 
injures  a  child,  it  will  be  liable.    C.  &  A.  R.  R.  v.  Gregory,  58  111.  226. 

2179.  Running  a  freight  train  at  a  rapid  speed,  down  grade,  at  a 
dangerous  crossing,  without  giving  the  statutory  warning,  is  gross 
negligence.    C.,  B.  &  Q.  R.  R.  v.  Payne,  59  111.  534. 

2180.  The  speed  of  a  train  may  be  considered  in  connection  with 
its  location  and  that  of  a  highway,  and  other  surrounding  circum- 
stances, on  the  question  of  negligence.    /.  &  St.  L.  R.  R.  v.  /Stables,  62 
111.  313. 

2181.  Cases  in  which  the  speed  of  the  train  figures  on  the  question 
of  liability  for  negligence.    /.  &  St.  L.  R.  R.  v.  Gfalbreath,  63  111.  436; 
C.  &  N.  W.  Ry.  v.  Ryan,  70  111.  211;  C.  &  A.  R.  R.  v.  Becker,  76  111.  25; 
I.  &  St.  L.  R.  R.  v.  Peyton,  76  111.  340. 

2182.  Railway  company  is  guilty  of  gross  negligence  in  running  a 
train  at  the  rate  of  ten  miles  an  hour  in  a  populous  city,  contrary  to 
an  ordinance  thereof,  especially  where  there  are  many  tracks,  &c.,  to 
cross.    P.,  C.  &  St.  L.  Ry.  v.  Knutson,  69  111.  103. 

2183.  The  jury  may  consider  all  the  circumstances  and  from  them 
determine  whether  a  train  was  run  at  an  improper  speed  in  reference 
to  the  safety  of  one  killed.    /.  C.  R.  R.  v.  Cragin,  71  111.  177. 

2183a.  DUE  CARE  OF  PLAINTIFF — not  excused  by  great  speed. 
The  fact  that  a  railway  company  violates  the  statute  by  running  its 
trains  at  a  speed  prohibited  by  ordinance,  does  not  relieve  the  plaintiff 


264  RAILROADS,  WAREHOUSES, 

seeking  to  recover  for  a  personal  injury  from  the  necessity  of  proving 
due  care.  St.  L.,A.&  T.  H.  II .  R.  v.  Andres,  16  Brad w.  292 . 

2184.  Where  animals  at  large  contrary  to  law,  are  killed  at  a  road 
crossing,  proof  that  the  train  was  running  at  an  -unreasonable  rate  of 
speed,  is  not  sufficient  to  authorize  a  recovery.  T.,  W.  &  W.  Ry.  v. 
Barlow,  71  111.  640. 

2186.  Company  should  so  regulate  the  speed  of  its  trains  in  crossing 
public  highways  and  give  warning,  that  all  passing  may  be  apprised 
of  the  danger,  and  a  neglect  to  do  so,  makes  it  liable.  R.,  R.  I.  &  St. 
L.  R.  R.  v.  Hillmer,  72  111.  235. 

2186.  Running  at  prohibited  rate  of  speed  in  a  populous  city,  is 
gross  negligence.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Dunn,  78  111.  197. 

2187.  It  is  the  duty  of  a  railway  company  to  run  its  trains  through 
a  village  at  such  a  speed  as  to  have  them  under  control,  even  if  there 
is  no  ordinance  on  the  subject.    C.  &  A.  R.  R.  v.  Engle,  84  111.  397. 

2188.  The  speed  of  a  train  approaching  a  highway  crossing  should 
not  be  so  great  at  the  crossing  as  to  render  unavailing  the  warning  of 
its  bell  or  whistle.    C.,  B.  &  Q.  R.  R.  v.  Lee,  87  111.  454. 

2189.  A  railway  company  must  regulate  the  speed  of  its  trains  in 
cities  and  public  thoroughfares,  with  reference  to  the  safety  of  the 
public,  or  be  liable  for  the  damages  resulting  from  its  negligence  or 
willfulness  in  this  respect.    Running  at  greater  speed  than  is  allowed 
by  law,  is  not  only  carelessness,  but  the  act  is  willful.     Wabash  Ry.  v. 
Henks,  91  111.  406. 

2190.  The  law  prohibiting  the  running  of  trains  at  a  greater  speed 
than  ten  miles  an  hour  in  cities,  is  not  a  license  to  run  at  such  speed 
in  all  cases.    In  some  places  within  a  city,  that  would  be  a  dangerous 
speed.    The  rate  of  speed  must  conform  to  the  safety  of  the  public  at 
all  places  in  a  city  where  others  have  equal  rights.    Ib. 

2191.  Where  a  person  was  struck  at  a  street  crossing,  proof  that 
the  train  was  run  at  an  unusual  speed;  that  no  bell  or  whistle  was 
sounded,  and  no  light  on  the  forward  car  that  struck  the  plaintiff,  and 
that  plaintiff  was  using  proper  care,  makes  out  a  clear  right  of  recov- 
ery.   L.,  E.  &  W.  Ry.  v.  Zoflinger,  107  111.  199. 

2192.  Whether  a  given  rate  of  speed  is  dangerous  or  not,  is  to  be 
determined  by  the   surrounding  circumstances,  such  as  the  condi- 
tion of  the  track,  fencing  of  the  road,  &c.    I.,B.  &  W.  Ry.  v.  Hall, 
106111.  371. 

2193.  If   an  engineer  drives   his  engine  at  a  negligent  or  high 
rate  of  speed  which  materially  contributes  to  an  injury  received  by 
him,  he  cannot  recover.     /.  C.  R.  R.  v.  Patterson,  69  111.  650;  same 
case,  93111.  290. 

2194.  EVIDENCE — ordinance.     In  order  to  recover  on  the  ground 
that  a  train  was  run  at  a  greater  rate  of  speed  than  authorized  by 
ordinance,  the  ordinance  must  be  put  in  evidence.     C.  &  N.  W.  Ry.  v 
Schumilowsky,  8  Bradw.  613. 

2195.  Under  an   averment  of  negligence  generally,  proof  of  a 
violation  of  an  ordinance  is  admissible.      C.,R.  I.  &  P.  R.  R.  v. 
Reidy,  66  111.  43. 

2196.  If  the  declaration  contains  no  averment  that  there  was  a 
city  ordinance  regulating  the  speed  of  trains  at  the  place  of  the  acci- 
dent, evidence  that  the  speed  of  the  train  was  greater  than  that  pre- 
scribed by  ordinance, is  inadmissible.     /.  C.  R.  R.  v.  Godfrey,  71  111. 
500. 

2197.  To  recover  for  killing  an  animal  in  a  town  on  the  ground 
the  train  was  run  at  a  prohibited  speed,  the  plaintiff  must  prove  that 


AND  EMINENT  DOMAIN.  265 

the  ordinance  was  in  force  by  due  publication,  at  the  time  of  the 
injury .     C .  &  A .  R .  R .  v .  Engle,  76  111 .  317 . 

2198.  An  ordinance  of  a  city  limiting  speed  of  trains  to  six  miles 
an  hour,  is  proper  evidence  to  go  to  the  jury,  on  the  question  of  negli- 
gence.    T.,  W.  &  W.  Ry.  v.  O'Connor,  77  111.  391. 

2199 .  Testimony  showing  how  far  a  train  of  cars  ran  after  strik- 
ing a  person,  is  competent  evidence  to  show  that  the  train  was 
running  at  a  greater  speed  that  allowed  by  ordinance  of  the  city,  and 
was  not  under  proper  control.     Penn.  Co.  v.  Conlan,  101  111.  93. 

2200.  Declaration  informally  drawn,  held  sufficient  to  admit  in 
evidence  proof  of  an  ordinance  regulating  the  rate  of  speed  of  a  rail- 
way.   L.  8.&M.8.R.R.\.  O'Connor,  115  111.  254. 

2201.  INSTRUCTIONS,  wholly  ignoring  the  question  whether  plain- 
tiff was  injured  in  consequence  of  the  negligent  acts  or  omissions  of 
duty  are  erroneous.    C.,  B.  &  Q.  R.  R.  v.  Dvorak,  1  Brad.  555. 

2202.  Instructions  based  on  negligence  of  company  in  running  in 
disregard  of  ordinance  and  failure  to  give  warnings,  and  the  care  of 
the  deceased,  are  bad  in  excluding  the  rule  of  comparative  negligence. 
Schmidt  v.  C.  &  N.  W.  Ry.,  83  111.  405. 

2203.  Failure  of  servants  to  obey  orders  no  defense  to  company. 
/.  &  St.  L.  R.  R.  v.  People,  91  111.  452. 

2204.  DUTY  TO  STOP  AT  ALL  STATIONS.     §  25.  Every  rail- 
road corporation  shall  cause  its  passenger  trains  to  stop  upon 
its  arrival  at  each  station,  advertised  by  such  corporation  as 
a  place  for  receiving  and  discharging  passengers,  upon  and 
from  such  trains,  a  sufficient  length  of  time  to  receive  and  let 
off  such  passengers  with  safety:     Provided,  all  regular  pas- 
senger trains  shall  stop  a  sufficient  length  of  time  at  the  rail- 
road station  of  county  seats,  to  receive  and  let  off  passengers 
with  safety.     [As  amended  by  Laws  of  1879,  p.  225.     Amend- 
ment is  original  section  with  proviso  added.     R.  S.  1887,  p. 
1018,  §  88;  S  &  0.,  p.  1943,  §  88;  Cothran,  p.  1158,  §  74] 

2205.  STOPPING  AT  STATION  CALLED  FOB  IN  TICKET.    Railway 
companies  may  have  passenger  trains  that  stop  only  at  the  principal 
stations.    They  may  also  run  freight  trains  which  only  stop  at  certain 
stations  for  fuel  and  water,  or  at  such  other  stations  as  the  transpor- 
tation of  stock  or  freight  may  require.    C.  &  A.  R.  R.  v.  Randolph,  53 
111.  510. 

2206 .  They  may  exclude  all  passengers  from  such  freight  trains, 
or  only  carry  them  to  the  places  at  which  they  are  accustomed  to  stop. 
Taking  up  passenger's  ticket  does  not  amount  to  a  contract  to  stop 
train  at  his  station.    Ib. 

2207.  If  passenger  guilty  of  want  of  ordinary  care  in  leaping  from 
train  while  being  carried  beyond  his  station,  he  cannot  recover  for  a 
personal  injury,  although  the  conductor  may  have  given  his  opinion 
that  he  might  get  off  safely.    Ib. 

2208.  SAME — time  for  getting  off.     Reasonable  time   must   be 
allowed  for  passengers,  whether  old  or  young,  to  alight  in  safety. 
Liability  for  an  injury  caused  by  want  of  time  to  get  off.    T.,  W.  & 
W.  Ry.  v.  Baddeley,  54  111.  19. 

2209.  Where  train  stops  at  station  a  reasonable  time  for  passengers 
to  get  off,  and  a  passenger  neglects  to  get  off  until  train  starts,  when 
he  attempts  on  his  own  motion  to  get  off  and  is  killed,  and  no  negli- 


266  RAILROADS,  WAREHOUSES, 

fence  on  the  part  of  the  company  is  shown,  no  recovery  can  be  had. 
.  C.  R.  R.  v.  Slatton,  54  111.  133. 

2210.  Carrying  a  passenger  beyond  his  station  without  giving  him 
a  reasonable  opportunity  of  leaving  the  train,  gives  him  a  right  of 
action  for  damages.     /.  C.R.R.v.  Able,  59  111.  131;  0.  &  M.  Ry.  v. 
Stratton,  78  111.  88,  94. 

2211.  CONTRIBUTORY  NEGLIGENCE.   If  passenger  while  being  car- 
ried beyond  his  station  against  his  will,  leaps  from  the  train  while  in 
rapid  motion,  or  attempts  to  get  off  under  such  circumstances  as  to 
make  the  act  dangerous,  he  cannot  recover  for  an  injury  received  in 
such  attempt.    Aliter,  if  act  is  apparently  safe  and  free  from  appear- 
ance of  danger.    /.  C.  R.  R,  v.  Able,  59  111.  131. 

2212.  LIABILITY  —for  carrying  beyond  station.    Where  a.  freight 
train  was  in  the  habit  of  carrying  passengers  to  a  certain  station,  and 
before  the  company  had  made  any  different  rule  or  regulation  in  this 
respect,  the  plaintiff  purchased  a  ticket  for  such  station,  but  was  in- 
formed by  the  conductor  that  he  would  not  stop  at  such  station,  and 
advised  him  to  take  passage  with  another  extra  train,  to  which  he  ap- 
plied and  was  refused  passage,  and  the  plaintiff  entered  the  first  train, 
informing  the  conductor  of  the  facts,  and  was  by  it  carried  to  the 
next  station  beyond  the  one  named  in  his  ticket:  Held,  that  the  com- 
pany was  liable  to  the  plaintiff  in  compensatory  damages.    C.,  R.  I. 
&  P.  R.  R.  v.  Fisher,  66  111.  152. 

2213.  LIABILITY  FOR  NOT  STOPPING  TO  TAKE  ON  PASSENGER. 
If  a  railway  company  wrongfully  fails  to  stop  at  a  station  to  take  on 
a  passenger,  he  will  be  entitled  to  recover  nominal  and  such  actual 
damage  as  he  may  sustain  by  reason  of  the  delay.    I.,  B.  &  W.  Ry.  v. 
Birney,l\  111.  391. 

2214.  CARRYING  BEYOND  STATION.    Company  liable  for  dam- 
ages for  carrying  passenger   against  his  will  beyond  his  station,  by 
not  affording  him  a  chance  to  get  off.    /.  C.  R.  R.  v.  Chambers,  71 
111.  519. 

2215.  If  passenger  under  the  apprehension  that  he  is  being  carried 
beyond  his  station,  leaps  from  the  train  in  motion  under  such  circum- 
stances as  to  make  his  act  probably  dangerous,  he  cannot  recover.   76. 

2216.  .Passenger  has  no  right  to  attempt  to  get  off  a  train  while  in 
motion,  and  if  he  does  so  without  the  knowledge  or  direction  of  any 
employe  of  the  company,  he  must  bear  the  consequences .     0.  &  M . 
Ry.  v.  Stratton,  78111.  88. 

2217 .  Where  a  passenger  while  asleep,  is  carried  beyond  his  station 
and  when  the  train  arrives   at  a  bridge  where  it  stops  to  take  on 
water,  he  gets  up  and  without  any  advice  from  any  one  connected 
with  the  company,  goes  out  of  the  car  in  a  dark  night,  and  finding  no 
brakeman  put  out  his  foot  to  reach  the  platform,  and  there  being  none 
there,  when  the  train  gave  a  jerk,  which  pulled  both  feet  off  the  car 
and  he  fell  through  the  bridge  and  was  injured:  Held,  that  his  negli- 
gence was  such  as  to  bar  a  recovery.    /.  C.  R.  R.  v.  Green,  81  111.  19. 

2218.  If  a  passenger  is  negligently  carried  past  his  station,  this 
will  not  justify  him  in  needlessly  exposing  himself  to  danger,  and  his 
injury  in  getting  off  train  while  in  motion,  or  upon  a  high  bridge,  is 
too  remote  to  be  recovered  in  an  action  for  the  negligence  of  the 
company.    /.  C.  R.  R.  v.  Green,  81  111.  19. 

2219.  The  fact  that  a  passenger  is  in  danger  of  being  carried  past 
his  station,  will  not  justify  him  in  getting  off  while  the  train  is  in 
motion,  or  imprudently  exposing  himself  to  danger.    If  he  does  so 
and  is  injured,  he  cannot  recover  for  the  same.    /.  C.  R.  R.  v.  Lutz, 
84  111.  598. 


AND  EMINENT  DOMAIN.  267 

2220.  If  train  fails  to  stop  at  passenger  station,  it  furnishes  no 
excuse  for  passenger  to  leap  from  the  train  some  three  miles  beyond, 
while  the  train  is  running  at  the  rate  of  fifteen  miles  an  hour,  and  if  he 
does  so  and  is  injured,  he  cannot  recover.     He  should  have  remained 
on  train,  and  sued  for  damages  for  being  carried  beyond  his  proper 
station .    Dougherty  v .  C . ,  B .  &  Q .  R .  R . ,  86  111.  467. 

2221 .  Passenger  haying  ample  time  to  get  aboard  train  who  waits 
until  it  starts,  and  is  injured  in  attempting  to  get  on,  has  no  cause  of 
action  for  his  injury.     C.&N.  W.v.  Scales,  90  111.  586. 

2222 .  It  may  be  true,  that  alighting  from  a  train  of  cars  while  in 
motion  is  negligence,  where  the  railway  company  is  not  in  fault,  and 
the  train  has  considerable  speed,  but  it  is  not  necessarily  true  when  it 
is  a  question  of  comparative  negligence.    C.  &  A.  R.  R.  v.  Bonifleld, 
104111.223. 

2223.  It  is  the  duty  of  every  railroad  company  totalise  its  pas- 
senger trains  to  stop  at  each  station  advertised  as  a  place  for  receiving 
and  discharging  passengers,  a  sufficient  time  to  receive  and  let  off  pas- 
sengers with  safety,  and  to  provide  a  reasonably  safe  way  of  reaching 
and  departing  from  their  cars  at  all  usual  stations,  and  it  is  the  duty 
of  passengers  to  exercise  ordinary  care  in  attempting  to  take  passage 
on  railway  cars.     W.,  St.  L.  &  P.  Ry.  v.  Rector,  104  111.  296. 

2224.  The  act  of  1879  requiring  all  passenger  trains  to  stop  at 
county  seats  long  enough  to  take  and  discharge  passengers,  is  not  a 
regulation  of  inter-state  commerce.    It  is  a  proper  exercise  of  police 
power  and  is  a  valid  law.    C .  &  A.R.  R.  v.  People,  105  111.  657. 

2225.  Kegular  express  train  not  stopping  at  all  intermediate  sta- 
tions is  a  regular  passenger  train  within  the  meaning  of  the  statute, 
and  must  stop  at  county  seats.    Ib. 

2226.  LIABILITY  FOR  INJURY  caused  by  starting  car  suddenly.   C., 
B.  &  O.  R.  R.  v.  Hazzard,  26  111.  373;  C.  &  W.I.  Ry.  v.  Bingenheimer, 
116  111.  226. 

2227.  Liability  of  street  railway  company  for  suddenly  starting 
cars  while  passengers  getting  on  or  off.    Ch.  W.  Div.  Ry.  v.  Mills,  91 
111.  39;  Ch.  C.  Ry.  v.  Mumford,  97  111.  560. 

2228.  STOPPING  AT  COUNTY  SEAT.    Where  a  railroad  is  built  to  a 
town,  as  required  by  its  charter,  and  a  depot  is  established  at  the  end 
of  its  line  within  such  town,  which  is  a  county  seat,  the  company 
operating  such  road  will  have  no  discretion  as  to  which  of  its  passen- 
ger trains  shall  stop  there  and  which  shall  not,  as  it  would  have,  within 
certain  reasonable  limitations,  if  such  town  was  not  a  county  seat,  but 
all  its  passenger  trains  must  stop  at  such  place.    It  is  not  sufficient 
that  all  its  trains  may  stop  at  a  new  depot  located  at  a  junction  with 
another  road,  a  quarter  of  a  mile  beyond  the  corporate  limits  of  such 
town.    People  v.  L.  &  N.  R.  R.,  120  111.  48. 

2229.  BRAKEMAN  ON  PASSENGER  CARS.     §26.  No  railroad 
corporation  shall  run  or  permit  to  be  run  upon  its  railroad 
any  train  of  cars  moved  by  steam  power,  for  the  transporta- 
tion of  passengers,  unless  there  is  placed  upon  the  train  one 
trusty  and  skillful  brakeman  for  every  two  cars  in  the  train, 
or  unless  the  brakes  are  efficiently  operated  by  power  applied 
from  the  locomotive.     [R.  S.  1887,  p.  1018,  §  89;  S.  &  C.,  p. 
1943,  §  89;  Cothran,  p.  1158,  §  75.] 

2230.  If  a  brakeman  is  injured  by  reason  of  the  nut  on  a  brake 
being  gone,  of  which  he  had  no  knowledge,  he  will  not  be  guilty  of 
contributory  negligence.    Ch.  &  E.  III.  R.  R.  v.  Hagar,  11  Bradw.  498. 


268  KAILROADS,  WAREHOUSES, 

2231.  If  fellow  servants  of  a  brakeman  neglect  to  discover  and 
report  defective  brake,  and  he  is  killed  through  such  defect,  no  recov- 
ery can  be  had.  C.  &  A.  R.  R.  v.  Brayonier,  11  Brad.  516. 

2232:  Where  a  brakeman  was  killed  by  a  defect  in  the  brake,  the 
nut  which  kept  the  wheel  in  its  place  on  the  upright  shaft,  having 
become  loose,  and  in  the  effort  to  work  the  brake,  the  wheel  came  off 
and  the  deceased  was  thrown  to  the  ground:  Held,  that  it  was  the 
duty  of  the  brakeman  to  see  that  the  brake  was  in  a  fit  condition  for 
use,  and  the  company  was  not  to  suffer  for  his  neglect  of  duty.  /.  C. 
R.  R.  V.  Jewell,  46  111.  99. 

2233.  To  run'  a  train  of  six  or  eight  cars  without  a  brakeman,  is 
gross  negligence.  So  a  failure  to  apply  brakes  on  signal  of  danger  by 
engineer  implies  gross  negligence.  T.,  W.  &  W.  Ry.  v.  Mctfinnis,  71 
111.  346. 

2234.  BRAKEMAN  ON  FREIGHT  CARS.     §  27.  No  railroad 
corporation  shall  run  or  permit  to  be  run  upon  its  railroad 
any  train  of  cars,  for  the  transportation  of  merchandise  or 
other  freight,  without  a  good  and  sufficient  brake  attached  to 
the  rear  or  hindmost  car  of   the  train,  and  a  trusty  and  skill- 
ful brakeman  stationed  upon  said  car,  unless  the  brakes  are 
efficiently  operated  by  power  applied  from  the  locomotive. 
[R.  S.  1887,  p.  1018,  §  90;  S.  &  C.,  p.  1943,  §  90;  Cothran,  p. 
1158,  §76.] 

2235.  DAMAGES — PENALTY.     §  28.  If  any  railroad  corpo- 
ration shall  violate  any  of  the  provisions  of  the  three  preced- 
ing sections,  it  shall  be  liable  to  the  person  aggrieved  for  all 
damages  done  to  person  or  property  by  reason  thereof,  with 
costs  of  suit;  and  in  addition  thereto,  said  corporation  shall 
forfeit  the  sum  of  not  less  than  $100  nor  more  than  $500,  for 
each  offense,  to  be  recovered  in  an  action  of  debt,  in  the  name 
of  the  people  of  the  state  of  Illinois,  for  the  use  of  any  per- 
son aggrieved,  before  any  court  of  competent  jurisdiction. 
[B.  S.  1887,  p.  1018,  §  91;  S.  &  C.,  p.  1943,  §  91;  Cothran,  p. 
1158,  §77.] 

2236.  CHECKS  OR  RECEIPTS  FOR  BAGGAGE.    §  29.  Every 
railroad  corporation,  when  requested,  shall  give  checks  or 
receipts  to  passengers  for  their  ordinary  baggage,  when  de- 
livered for  transportation  on  any  passenger  train,  which  bag- 
gage shall,  in  no  case,  exceed  one  hundred  pounds  in  weight 
for  each  passenger,  and  shall  deliver  such  baggage  to  any 
passenger  upon  the  surrender  of  such  checks  or  receipts. 
Any  such  corporation  willfully  refusing  to  comply  with  the 
requirements  of  this  section,  shall  pay  a  fine  of  not  less  than 
$10  nor  more  than  $100,  which  may  be  recovered  before  any 
court  of  competent  jurisdiction,  in  an  action  of  debt,  in  the 
name  of  the  people  of  the  state  of  Illinois,  for  the  use  of  the 
person  aggrieved:  Provided,  that  no  passenger  shall  be  en- 
titled to  receive  checks  or  receipts  for  any  baggage  unless  he 
shall  have  paid  or  tendered  the  lawful  rate  of  fare  for  his 


AND  EMINENT  DOMAIN.  269 

transportation  to  the  proper  agent  for  such  corporation.  [R. 
S  1887,  p.  1018,  §  92;  S.  &  0.,  p.  1943,  §  92;  Cotliran,  p.  1158, 
§  78.] 

2237.  CHECK  AS  EVIDENCE.    In  an  action  for  lost  baggage,  a 
nickel  plated  check  was  given  in  evidence,  and  a  witness,  a  baggage- 
master  of  the  defendant,  testified  that  nickel  plated  checks  had  never 
been  used  on  through  baggage  to  his  knowledge,  and  was  then  asked 
whether  his  position  was  such  that  he  would  have  known,  if  they  had 
been  so  used:  Held,  that  the  question  was  proper.     L.  8.  &  M.  S.  Ry. 
v.  Lassen,  12  Bradw.  659. 

2238.  Where  a  baggagem aster,  having  testified  that  a  particular 
kind  of  check  was  alone  available  to  carry  baggage  between  two  des- 
ignated stations,  was  asked  to  state  whether  it  was  possible  for  the 
check  held  by  the  plaintiff  to  have  been  used  in  the  usual  course  of 
business:  Held,  that  the  question  was  competent .     Ib. 

2239.  Carrier  by  receiving  passenger's  baggage  becomes  immedi- 
ately responsible  for  its  safe  delivery  at  its  destination .      Woods  v . 
Devin,  13  111.  746. 

2240.  He  is  responsible  for  the  baggage  of  a  passenger  the  same 
as  a  common  carrier  of  goods.    He  can  only  excuse  himself  for  non- 
delivery by  showing  loss  by  the  act  of  God  or  the  public  enemy.    Ib. 

2241 .  His  responsibility  commences  when  the  baggage  is  delivered 
to  him  or  his  agent,  and  prepayment  of  fare  is  not  necessary  to  charge 
him  for  its  loss.     His  compensation  is  included  in  the  passenger 
fare.    Ib. 

2242.  A  passenger's  baggage  may  include  a  reasonable  sum  of 
money  for  traveling  expenses  and  such  articles  of  necessity  and  con- 
venience as  are  usually  carried  by  passengers  for  personal  use,  com- 
fort, instruction,  amusement  or  protection.     It  may  include  a  pocket 
pistol  and  a  pair  of  dueling  pistols,  not  carried  as  merchandise .      Ib. 

2243.  Common  carrier  not  liable  for  the  loss  of  money  packed 
among  other  goods  in  a  box  in  such  way  as  to  mislead  and  deceive  the 
carrier.     If  to  be  held  liable,  he  should  be  informed  of  the  contents. 
C.&A.R.R.v.  Thompson,  19  111.  578. 

2244.  Railway  corporation  will  not  be  liable  for  lost  baggage,  un- 
less it  is  shown  to  have  been  in  its  possession,  or  it  has  contracted  in 
some  way  to  transport  it.     M.,S.  &  N.  Ind.  R.  R.  v.  Meyres,  21  111. 
627. 

2245.  In  an  action  for  lost  baggage,  it  is  proper  to  instruct  that  a 
recoverymaybe  had  for  such  articles  of  necessity  and  convenience  as 
passengers  usually  carry  for  their  personal  use,  comfort,  instruction, 
amusement  and  protection,  having  regard  to  the  length  and  object  of 
their  journeys.     Parmelee  v.  Fischer,  22  111.  212. 

2246.  The  delivery  of  a  baggage  check,  is  priina  facie  evidence 
that  the  company  has  the  baggage.     A  revolver  included  in  personal 
baggage .     Dams  v. M ., S .  &  ff.  Ind .  R.R.,  22  111,  278 . 

2247.  A  reasonable  amount  of  bank  bills  maybe  carried  in  a 
trunk,  and  their  value  recovered  as  lost  baggage.    /.  C.  R.  R.  v.  Cope- 
land,  24  111.  332. 

2248 .  Declaration  need  not  aver  the  plaintiff  w  as  a  passenger  to 
admit  proof  of  that  fact,  which  may  be  shown  by  the  possession  of 
the  baggage  check  and  ticket,  or  by  the  check  alone,  if  such  checks 
are  not  given  until  the  passenger  tickets  are  shown.    76. 

2249.  Railway  company  selling  through  tickets  over  its  own  and 
other  roads,  is  liable  for  the  safety  of  passengers  and  baggage  to  the 
point  of  destination .     Ib . 


270  BAILROADS,  WAREHOUSES, 

2250.  The  purchase  of  a  railroad  ticket  includes  the  payment  for 
the  transportation  of  the  person's  baggage,  not  exceeding  a  specified 
weight.    C.  &  C.,  A.  L.  R.  R.  v.  Marcus,  38  111.  219. 

2251 .  Baggage  consists  of  such  articles  as  are  necessary  for  a  per- 
son's comfort  and  convenience,  with  the  necessary  amount  of  mouey 
for  expenses.    Ib. 

2252.  The  owner,  who  under  the  pretense  of  having  baggage 
transported,  places  in  the  hands  of  the  agent  of  a  railway  company, 
merchandise,  jewelry  and  other  valuables,  is  guilty  of  fraud,  which 
releases  the  company  from  liability  as  common  carrier  for  a  loss.  Ib. : 
M.  C.  R.  R.  v.  Carrow,  73  111.  348. 

2258 .  The  price  paid  for  a  ticket  includes  the  carrying  of  the  pas- 
senger's baggage,  and  the  recognition  of  the  ticket  by  the  railroad 
company,  is  an  admission  that  the  check  given  for  the  baggage  is 
equally  binding.  C.  &  R.  I.  R.  R.  v.  Fahey,  52  111.  81. 

2254.  Where  a  passenger's  ticket  entitles  him  to  travel  over  differ- 
ent lines  of  road  to  his  destination,  and  to  which  his  baggage  is  checked, 
all  of  the  lines  recognizing  the  validity  of  the  ticket,  each  company 
into  whose  possession  the  baggage  may  come,  will  be  liable  to  the 
owner  for  its  loss.    C.  &  R.  I.  R.  R.  v.  Fahey,  52  111.  81. 

2255.  A  Chicago  grocer,  who  went  into  the  country  in  quest  of 
butter,  sought  to  recover  of  a  railroad  company  the  value  of  two  revol- 
vers, among  other  things,  which  he  claimed  were  in  the  trunk  as  a 
part  of  his  baggage,  which  was  lost  by  the  company:    Held,  with  due 
regard  to  the  habits  and  condition  in  life  of  the  passenger,  more  than 
one  revolver  was  not  reasonably  necessary  for  his  personal  use  and 
protection.    C.,  R.  I.  &  P.  R.  R.  v.  Collins,  56  111.  212. 

2256.  Where  plaintiff  ships  as  personal  baggage  merchandise  to  be 
used  in  his  trade,  which  in  no  sense  is  capable  of  being  considered 
personal  baggage,  the  company  not  having  notice  of  the  contents,  will 
be  released  from  their  liability  as  a  common  carrier.    M.S.  &  N.Ind. 
R.  R.  v.  Oehm,  56  111.  293. 

2257.  Where  the  passenger  leaves  his  baggage  in  charge  of  the  car- 
rier, the  liability  of  the  latter  will  not  be  changed  to  that  of  ware- 
houseman, until  the  baggage  is  stored  in  a  safe  and  secure  warehouse . 
If  placed  in  an  insecure  room  and  is  there  stolen,  the  company  will  be 
liable  as  a  carrier  and  not  as  a  warehouseman.    Bartholomew  v.  St. 
L.,  J.  &  C.  R.  R.,  53  111.  227. 

2258.  Where  baggage  after  reaching  its  destination,  is  not  for  any 
cause  delivered  to  the  passenger  or  his  agent,  it  is  the  duty  of  the  com- 
pany to  deposit  it  in  their  baggage  room,  when  their  liability  is 
changed  to  that  of  warehousemen.    C.,  R.  I.  &  P.  R.  R.  v.  Fairclough, 
52  111.  106. 

2259.  Railway  company  not  liable  for  loss  by  fire  of  costly  jewelry 
checked  in  a  trunk  as  ordinary  baggage,  unless  it  was  guilty  of  gross 
negligence.    The  fraud  of  passenger  releases  the  carrier  of  his  extra- 
ordinary liability.    M.  C.  R.  R.  v.  Carrow,  73  111.  348. 

2260.  Carrier  of  passengers  is  not  bound  to  inquire  as  to  the  con- 
tents of  a  trunk  delivered  to  it  as  ordinary  baggage,  such  as  travelers 
usually  carry,  even  if  the  same  is  of  considerable  weight,  but  may 
rely  upon  the  representations,  arising  by  implication,  that  it  contains 
nothing  more  than  such  baggage.     M.  C.  R.  R.\.  Carrow,  73  111.  348. 

2261.  Owners  of  sleeping  cars,  are  not  carriers,  and  cannot  be  held 
liable  as  such  for  property  lost  by  or  stolen  from  lodgers  while  on 
their  cars.    Pullman  Palace  Car  Co.  v.  /Smith,  73  111.  360. 

2262.  A  sacque  and  muff  and  silver  napkin  rings,  cannot  be  said 
to  constitute  any  part  of  a  gentleman's  traveling  baggage,  and  no  re- 


AND  EMINENT  DOMAIN.  271 

co very  can  be  had  for  their  value  in  case  of  a  loss.  C.,  R.  I.  &  P.R. 
R.  v.  Soyce,  73  111.  510. 

2268.  The  carrier's  strict  liability  for  baggage  continues  until  the 
owner  has  had  a  reasonable  time  and  opportunity  to  come  and  take 
the  same  away.  If  not  called  for  in  a  reasonable  time,  it  may  be 
stored  in  a  secure  warehouse,  and  the  liability  as  carrier  will  cease  and 
that  of  warehouseman  attach.  Ib. 

2204 .  What  is  a  reasonable  time  and  opportunity  to  call  for  bag- 
gage is  a  mixed  question  of  law  and  fact,  depending  greatly  upon  the 
peculiar  facts  of  each  case;  but  where  the  facts  are  undisputed,  it  is 
purely  a  question  of  law .  Ib . 

2265.  Unless  the  carrier  is  at  fault,  the  passenger  cannot,  for  pur- 
poses of  his  own  convenience,  or  by  reason  of  any  inevitable  accident 
to  himself,  be  permitted  to  extend  the  strict  liability  incident  to  a 
common  carrier  in  respect  to  baggage  after  it  has  reached  its  destina- 
tion .    Ib . 

2266.  The  delivery  of  a  baggage  check  to  a  passenger  is  prima 
facie  evidence  that  the  carrier  has  received  the  baggage  it  represents . 
Such  evidence  may  be  overcome  by  proof  to  the  contrary;  but  the 
burden  of  proof  is  upon  the  carrier  to  show  a  non-delivery.    C.,  R.  I. 
&P.R.R.V.  Clayton,  78  111.  616. 

2267 .  It  is  immaterial  when  baggage  comes  to  the  possession  of 
the  carrier,  whether  at  the  time  the  check  is  issued,  or  at  a  subsequent 
time.     In  either  case  its  liability  as  an  insurer  becomes  fixed  in  case 
of  a  loss.    C.,  R.  I.  &  P.  R.  R.  v.  Clayton,  78  111.  616. 

2268 .  Where  a  railway  company  received  a  passenger's  check  for 
baggage  which  had  not  then  arrived  by  another  road,  and  gave  its  own 
check  for  the  same,  and  it  appeared  that  it  surrendered  the  passen- 
ger's first  check  to  the  other  railway  company,  it  was  held  that  this 
was  sufficient,  in  the  absence  of  proof  to  the  contrary,  to  show  that 
the  baggage  was  received  by  the  company  so  surrendering  the  first 
check.    Ib. 

2269.  Where  the  carrier  has  taken  the  baggage  to  its  destination, 
if  not  called  for,  it  should  be  stored  in  a  safe  and  secure  warehouse. 
St.  L.  &  C.  R.R.v.  Hardway,  17  Bradw.  321. 

2270.  A  passenger's  trunk  was  carried  to  its  destination,  and  not 
being  called  for,  was  jplaced  over  night  by  the  carrier  in  the  ladies' 
waiting  room,  which  was  broken  into  and  the  contents  of  the  trunk 
stolen:  Held,  that  the  company  was  liable  for  the  contents,  except  as 
to  $10  for  a  silk  quilt,  that  not  being  baggage.    Id. 

2271.  Railway  company  is  an  insurer  of  baggage  until  its  arrival 
and  discharge  at  the  place  of  destination,  and  until  the  owner  has  had 
reasonable  time  and  opportunity  to  claim  and  take  it  away .     If  not 
called  for  in  a  reasonable  time  it  may  be  stored  in  a  safe  warehouse, 
and  the  liability  of  carrier  ceases  and  that  of  warehouseman  attaches . 
C.  &  A.  R.R.  v.  Addizoat,  17  Bradw.  632. 

2272.  The  reasonable  time  to  apply  for  baggage  transported  on  the 
same  train  with  the  passenger,  is  directly  after  its  arrival  and  transfer 
to  the  platform,  making  due  allowance  for  the  confusion  occasioned 
by  the  arrival  and  departure  of  the  train  and  for  the  delay  caused  by 
the  crowd  on  the  platform.   Ib. 

2273.  The  passenger  should  not  prolong  the  strict  liability  of  the 
carrier  any  longer  than  is  necessary  under  the  circumstances .     If 
informed  that  his  baggage  has  not  arrived  and  he  gives  no  directions, 
no  notice  of  its  arrival  can  be  given  and  he  should  inquire  again  in  a 
reasonable  time.    Id. 

2274.     BAGGAGE  SMASHING.     §  30.  Any  person  employed 


272  RAILROADS,  WAREHOUSES, 

by  a  railroad  corporation  in  this  state,  who  shall  willfully, 
carelessly  or  negligently  break,  injure  or  destroy  any 
baggage,  shall  be  liable  for  the  amount  of  damage  to  the 
owner  thereof,  and  may  be  arrested,  and,  on  conviction  be- 
fore a  justice  of  the  peace,  be  fined  in  any  sum  not  exceed- 
ing $200,  and  held  in  custody  or  confined  in  the  county  jail 
until  such  fine  shall  be  paid:  Provided,  that  the  remedy 
hereby  given  against  such  employe  shall  not  lessen  the  lia- 
bility of  such  corporation.  [E.  S.  1887,  p.  1018,  §  93;  S.  & 
C.,  p.  1944,  §  93;  Cothran,  p.  1159,  §  79.  See  Grim.  Code, 
Oh.  38,  §245.] 

2275.  EJECTING  PASSENGER — AT  WHAT  PLACES  AND  FOP, 
WHAT  CAUSE.     §  31.  If  any  passenger  on  any  railroad  car  or 
train  shall  refuse,  upon  reasonable  demand,  to  pay  his  lawful 
fare — or  shall,  upon  such  car  or  train,  use  abusive,  threaten- 
ing, vulgar,  obscene,  or  profane  language  thereon — or  shall 
so  conduct  himself  as  to   make  his  presence   offensive   or 
unsafe  to  passengers  thereon,  it  shall  be  lawful  for  the  con- 
ductor of  the  train  to  remove,  or  cause  to  be  removed,  such 
passenger  from  the  train  at  any  regular  station;  but  if  such 
conductor  shall  use,  cause  or  permit  to  be  used  unreasonable 
force  or  violence,  he  shall  be  liable  for  all  damages  to  the 
person  injured  thereby:     Provided,  that  the  recovery  and 
satisfaction  of  damages,  under  the  provisions  of  this  section, 
shall  not  lessen  the  liability  of,  or  the  amount  of  the  damages 
that  such  corporation  may  be  liable  to,  for  such  acts.     [R.  S. 
1887,  p.  1018,  §  94;   S.  &  C.,  p.  1944,  §  94;  Cothran,  p.  1159, 
§80.] 

2276.  PLACE  OF  EXPULSION.    The  rule  that  a  passenger  cannot  be 
expelled  from  the  train  except  at  a  regular  station,  does  not  apply  in 
all  cases.    Where  a  passenger  has  been  once  expelled  at  a  regular  sta- 
tion and  on  the  starting  of  the  train  again  leaped  on  the  same,  he  will 
not  be  entitled  to  the  same  consideration,  as  if  he  had  not  once  been 
expelled.    C.,  B.  &  Q.  R.  R.  v.  Boger,  1  Bradw.  472. 

2277.  The  rule  requiring  a  ticket  or  fall  fare  from  passengers,  is  a 
reasonable  one,  and  necessary  to  the  proper  transaction  of  business. 
St.  L.  &  C.  R.  R.  v.  Carroll,  13  Bradw.  585. 

2278.  To  avail  of  a  reduced  rate  of  fare  to  a  place  and  return,  the 
passenger  must  procure  a  special  ticket.    Attempting  to  ride  at  such 
reduced  rate,  without  ticket,  passenger  may  be  put  off.    St.  L.  &  C.  R. 
B.  v.  Carroll,  13  Bradw.  585. 

2279.  A  husband  bought  a  non-transferable  1,000  mile  ticket  and 
told  the  agent  to  issue  it  to  "  E.  Bannerman,"  and  the  agent  supposing 
it  was  intended  for  a  man,  inserted  "Mr."  before  the  name,  and  the 
ticket  was  presented  by  the  husband  to  pay  his  wife's  fare,  he  stating 
at  the  time  to  the  conductor  that  it  was  bought  for  his  wife  "  Elsa," 
and  the  conductor  refused  to  receive  the  ticket,  and  upon  refusal  to, 
pay  fare,  put  her  off  at  the  next  station  using  no  unnecessary  force.: 
Held,  that  the  wife  could  not  recover  for  her  expulsion.    C.  &  N.  W: 
Ry.  v.  Baniierinan,.  15  Bradw.  100. 

2280.  .Implied  contract  that  passenger  shall  be  humanely  treated, 


AND  EMINENT  DOMAIN.  273 

and  not  assaulted  or  maltreated  by  servants  of  railway  company, 
and  it  will  be  liable  for  breach  of  such  contract.  C.,  R.  I.  &  P.  Ry.  v. 
Barrett,  16  Bradw.  17. 

2281.  While  the  carrier  may  rescind  the  contract  of  carriage  for 
certain  misconduct  of  the  passenger,  the  penalty  for  such  misconduct 
must  not  be  enforced  unreasonably  or  oppressively.    If  unnecessary 
force  is  used  inflicting  unnecessary  damage,  the  company  will  be  lia- 
ble.   Ib. 

2282.  ASSAULT  AND  BATTERY.    The  use  of  mere  words  by  a  pas- 
senger to  a  conductor,  will  not  justify  an  assault  and  battery  of  the 
passenger  by  the  conductor,  or  relieve  the  company  from  liability  for 
the  same.    Coggins  v.  C.  &  A.  R.  R.,  18  Bradw.  620. 

2283.  Passengers  who  neglect  to  purchase  tickets  at  stations  before 
embarking  on  cars,  may  be  charged  additional  fare,  if  proper  conveni- 
ences and  facilities  are  furnished  them  for  procuring  tickets.    C.,  B. 
&  Q.  R.  R.  v.  Parks,  18  111.  460. 

2284.  If  a  passenger  pays  fare  only  from  one  station  to  another, 
without  a  ticket,  he  may  be  compelled  to  pay  an  extra  charge  at  each 
station.    C.,  B.  &  Q.  R.  R.  v.  Parks,  18  111.  460. 

2285.  EXPULSION.    If  a  passenger  refuses  to  pay  the  fare  required 
by  the  tariff  of  the  company,  he  may  be  ejected  from  the  cars  at  any 
regular  station,  but  not  elsewhere.    C.,  B.  &  Q.  R.  R.  v.  Parks,  18 
111.  460. 

2286.  The  company  must  furnish  proper  facilities  for  procuring 
tickets,  if  it  intends  to  charge  extra  fare,  when  tickets  are  not  pro- 
cured.   If  a  ticket  is  applied  for  and  not  furnished,  that  fact  may  be 
shown  by  the  station  agent,  and  his  certificate  of  it  should  be  evidence 
to  the  conductor  of  the  fact.    St.  L.,  A.  &  Ch.  R.  R.  v.  Dalby,  19  111.  353. 

2287.  If  a  passenger  refuses  to  pay  his  fare,  the  conductor  may 
lawfully  put  him  off  the  train  at  a  proper  place;  but  when  he  does  not 
refuse  to  pay  the  fare  he  is  legally  bound  to  pay,  his  removal  from  the 
cars  by  the  conductor,  is  unlawful,  and  trespass  lies  for  an  assault  and 
battery.    Ib. 

2288.  A  passenger  offered  a  ticket  which  was  void  by  reason  of  hav- 
ing a  hole  punched  through  it,  and  refusing  to  pay  fare,  was  ejected 
from  the  car,  three  or  four  miles  from  a  station,  without  any  aggra- 
vating circumstances:    Held,  (1)  that  attempting  to  use  such  a  ticket 
without  explaining  how  he  obtained  it  was  evidence  of  wrong  on  his 
part;  (2)  that  the  company  had  the  right  to  eject  him,  but  only  at  a 
station ;  (3)  that  his  attempt  to  impose  on  the  company  must  mitigate 
the  damages,  and  (4)  that  $1,000  was  excessive.     T.  H.,  A.  &  St.  L. 
R.  R.  v.  Vanatta,  21  111.  188. 

2289.  Where  a  passenger  refuses  to  pay  his  fare,  he  may  be  ejected 
from  the  cars  at  any  regular  station  but  not  elsewhere.    If  put  off  at 
any  place  other  than  a  station,  he  will  be  entitled  to  at  least  nominal 
damages,  but  whether  more,  depends  on  the  circumstances.    C.  &  A. 
R.  R.  v.  Roberts,  40  111.  503. 

2290.  A  passenger  wantonly  refusing  to  pay  fare  was  ejected  by 
the  conductor  at  a  place  two  miles  from  any  station,  but  in  a  manner 
free  from  indignity  toward  him,  who  was  subjected  to  no  other  injury 
than  being  obliged  to  walk  to  the  station:  Held,  that  a  verdict  for 
$450  damages  was  excessive.    Ib. 

2291.  EXPULSION — want  of  ticket.    Where  a  railway  company 
carries  passengers  on  a  freight  train,  and  in  such  cases,  requires  tickets 
to  be  purchased  before  entering  the  train,  and  a  passenger  disregards 
the  rule,  he  can  only  be  expelled  at  a  regular  station.    /.  C.  R.  R.  v. 
Sutton,  42  111.  438. 

—19 


274  KAILROADS,  WABEHOUSES, 

2292.  The  willful  neglect  to  purchase  a  ticket  at  the  time  and  place 
required  by  the  rules  ot  the  company,  and  a  refusal  to  pay  fare,  are 
substantially  the  same  offense  against  the  rights  of  the  company,  and 
the  penalty  for  one  is  no  greater  than  for  the  other.    Id. 

2293.  Where  a  passenger,  before  the  departure  of  the  train,  was 
informed  of  the  rule  requiring  tickets  to  be  purchased  before  entering 
the  train,  and  he  then  sought  to  buy  them,  but  the  office  was  closed, 
and  then  entered  the  train  and  offered  to  pay  his  fare  to  the  conductor, 
which  was  refused,  and  he  was  expelled  from  the  train  at  a  place  other 
than  a  regular  station:  Held,  that  the  company  was  liable.    Ib. 

2294.  OFFICE  OPEN  FOR  TICKETS.    Office  should  be  kept  open  for 
the  sale  of  tickets  for  a  reasonable  time  before  the  departure  of  each 
train  and  up  to  the  time  fixed  by  its  published  rules  for  its  departure, 
and  not  up  to  the  time  of  actual  departure.    St.  I>.,  A.  &  T.  H.  R.  R. 
v.  South,  43  111.  176. 

2295.  Company  bound  to  furnish  a  convenient  and  accessible  place 
for  the  sale  of  tickets  and  afford  a  reasonable  opportunity  to  purchase 
them,  and  parties  who  will  not  avail  themselves  of  it,  must  pay  the 
extra  fare,  or,  on  refusal,  be  ejected  from  the  train.    Ib. 

2296.  While  the  right  of  a  railway  company  to  discriminate  in  its 
fare,  between  those  purchasing  tickets  and  those  who  do,  not,  is  just 
and  reasonable,  still  such  right  depends  on  the  fact  that  a  reasonable 
opportunity  has  been  given  to  obtain  tickets  at  the  lowest  rate.    St. 
L.,  A.  &  T.  H.  R.  R.  v.  Soutli,  43  111.  176. 

2297.  EXPULSION  FROM  FREIGHT  TRAIN.  Eailway  company  hold- 
ing itself  out  as  a  carrier  of  passengers  by  a  freight  train,  has  no 
more  right  to  expel  a  passenger  therefrom  without  cause,  than  from 
a  regular  passenger  train.    C.  &  A.  R.  R.  v.  Flagg,  43  111.  364. 

2298.  They  may  as  to  certain  classes  of  trains  (as  freight  trains) 
require  tickets  to  be  purchased  before  entering  the  same.  A  passenger 
who  knowingly  disregards  such  a  rule,  is  placed  on  the  same  footing 
with  one  who  refuses  to  pay  fare,  and  may  be  expelled  at  any  regular 
station.    Ib. 

2299.  If  the  passenger  willfully  neglects  to  purchase  a  ticket  before 
entering  the  train,  he  cannot  be  expelled  at  a  place  other  than  a 
regular  station.    A  water  tank,  even  if  a  usual  stopping  place,  is  not 
a  regular  station.    Ib. 

2300.  A  failure  to  furnish  reasonable  facilities  for  procuring  a 
ticket  by  keeping  the  office  open  a  reasonable  time  prior  to  that  fixed 
for  the  departure  of  the  train,  gives  a  person  desiring  to  take  pas- 
sage, the  right  to  enter  the  train  and  to  be  carried  to  his  place  of  des- 
tination, by  the  payment  of  the  regular  fare  to  the  conductor.    Under 
such  circumstances  his  expulsion  would  be  unlawlul.    Ib. 

2301.  The  refusal  of  a  passenger  to  surrender  his  ticket  to  the  con- 
ductor when  demanded,  does  not  constitute  the  same  offense  as  the 
non-payment  of  fare,  and  the  statutory  prohibition  against  the  expul- 
sion of  passengers  for  the  latter  offense,  except  at  a  regular  station, 
does  not  apply  to  the  former  case.    /.  C.  R.  R.  v.  Whittemore,  43  111. 
420. 

2302.  A  railway  company  may  expel  a  passenger  at  a  place  other 
than  a  regular  station,  for  the  violation  of  any  reasonable  rule,  other 
than  that  of  non-payment  of  fare.     /.  C.  R.  R.  v.  Whittemore,  43 
111.  420. 

2303.  Where  a  passenger  wantonly  disregards  any  reasonable  rule, 
the  obligation  to  transport  him  ceases,  and  the  company  may  expel 
him  from  the  train,  using  no  unnecessary  force  and  not  at  a  dangerous 
or  inconvenient  place.    This  is  a  common  law  right  and  has  been 


AND  EMINENT  DOMAIN.  275 

restricted  by  statute  only  in  cases  of  non-payment  of  fare.    /.  C.R.R. 
v.  Whittemore,  43  111.  420. 

2304.  A  rule  requiring  passengers  to  surrender  their  tickets  when 
called  for,  is  a  reasonable  one  and  may  be  enforced.    Ib. 

2305.  It  is  unlawful  to  forcibly  expel  a  passenger  from  a  train 
between  the  usual  stopping  places  for  refusal  to  pay  his  fare,  and 
trespass  will  lie  for  the  injury,  even  though  he  agreed  to  get  off  if  the 
train  was  stopped.    C.  &  N.  W.  Ry.  v.  Peacock,  48  111.  253. 

2306.  In  a  suit  to  recover  for  being  put  off  a  freight  train  on  which 
the  plaintiff  had  taken  passage  without  first  procuring  a  ticket,  it  was 
objected  that  he  had  not  proved  such  train  was  employed  in  carrying 
passengers:  Held,  it  was  sufficient  that  the  evidence  showed  the  de- 
fendants at  the  time  of  the  occurrence  were  accustomed  to  carry 
passengers  on  freight  trains;  that  notices  were  posted  up  around  the 
window  of  the  ticket  office,  that  passengers  on  freight  trains  must  first 
obtain  tickets,  and  that  there  were  persons  on  the  train  who  had  pro- 
cured tickets.    /.  C.  R.  R.  v.  Sutton,  53  111.  397. 

2307.  Kailway  companies  are  liable  for  injuries  caused  to  a  person 
by  reason  of  their  servants  putting  him  off,  or  compelling  him  to  leave 
their  train  at  any  other  than  a  regular  station.    Ib. 

2308.  A  rule  setting  apart  a  car  for  the  exclusive  use  of  ladies,  and 
gentlemen  accompanied  by  ladies,  is  a  reasonable  rule  and  may  be 
enforced.    C.  &  N.  W.  Ry.  v.  Williams,  55  111.  185. 

2309.  In  the  absence  of  any  other  reasonable  rule  upon  the  subject 
the  company  cannot  lawfully,  from  caprice,  wantonness  or  prejudice, 
exclude  a  colored  woman  from  the  ladies'  car  on  account  of  her 
color.    Ib. 

2310.  If  a  passenger  offers  the  conductor  a  worthless  piece  of  paper, 
claiming  it  to  be  a  pass,  and  on  being  informed  it  is  not,  refuses  to 
pay  fare  or  leave  the  train,  the  servants  of  the  company  will  have  the 
right  to  put  him  off  at  a  regular  station,  and  they  may  use  the  neces- 
sary force  for  that  purpose.  C.,  R.  I.  &  P.  R.  R.  v.  Herring,  57  111.  59. 

2311.  It  is  not  an  unreasonable  rule  for  a  railroad  company  to 
require  that  persons  desiring  to  ride  on  freight  trains  shall  procure 
tickets  sold  expressly  for  such  trains.    /.  C.  R.  R.  v.  Nelson,  59  111.  110. 

2312.  Where  a  person  took  passage  on  a  freight  train  without  first 
procuring  the  kind  of  ticket  required  by  the  rules  of  the  company  to 
entitle  him  to  ride  on  that  character  of  a  train,  it  was  held  that  the 
conductor  had  the  right  to  require  him  to  leave  it  at  the  usual  place  of 
getting  on  and  off  such  trains,  at  a  station.    Ib. 

2313.  A  railway  company  may  require  that  passengers  procure 
tickets  before  riding  on  freight  trains,  and  conductors  may  expel  from 
the  cars  at  regular  stations,  such  as  neglect  to  comply  with  the  regu- 
lation.   T.,  P.  &  W.  Ry.  v.  Patterson,  63  111.  304. 

2314.  If  a  passenger  who  neglects  to  procure  a  ticket  to  enable  him 
to  ride  on  freight  train,  is  put  off  the  train  at  a  place  other  than  a 
regular  station,  the  company  will  be  liable  to  him  in  compensatory 
damages.    Ib. 

2315.  A  railway  company  has  the  right  to  make  a  rule  that  no  one 
shall  be  carried  as  a  passenger  on  its  freight  trains.    But  when  it  is 
in  the  habit  of  carrying  passengers  on  such  a  train,  and  has  its  regu- 
lar hour  for  departure  posted  in  its  office  at  the  station,  it  will  not  be 
justified  in  refusing  to  carry  a  passenger  from  such  station,  or  in  put- 
ting him  off  such  train.    /.  C.  R.  R.  v.  Johnson,  67  111.  312. 

2316.  Company  requiring  tickets  to  ride  on  freight  train,  must 
keep  ticket  office  open  a  reasonable  time  in  advance  of  the  hour  of  its 


276  BAILROADS,  WAREHOUSES, 

departure.  Failing  in  this,  a  person  desirinar  passage,  may  enter  the 
car  to  be  carried  to  his  destination  on  payment  of  the  regular  fare  to 
the  conductor.  Ib.  See  /.  C.  R.  R.  v.  Cunningham,  67  111.  316. 

2317.  If  the  holder  of  a  ticket  deports  himself  properly,  the  com- 
pany have  no  right  to  refuse  the  ticket,  or  to  admit  him  to  the  class 
of  car  his  ticket  designates,  and  when  thus  admitted,  the  company 
has  no  right,  so  long  as  he  deports  himself  properly,  to  eject  him  from 
the  train,  before  reaching  his  station.    Churchill  v.  C.  &  A.  R.  R.,  67 
111.  390. 

2318.  A  railway  company,  not  being  obliged  to  give  a  lay  over 
ticket,  when  it  does  so,  it  is  upon  the  terms  agreed  upon  by  the  par- 
ties, neither  having  the  right  to  disregard  them,  when  given  and  ac- 
cepted.   And  when  a  passenger  accepts  a  lay  over  ticket,  marked 
good  for  thirty  days  only,  he  is  bound  by  the  terms  imposed,  and  to 
make  the  same  available,  must  use  it  within  the  time  prescribed.    Ib. 

2319.  The  law  does  not  require  that  the  conductor  in  taking  up  a 
ticket  shall  give  the  holder  a  check,  or  punch  the  ticket  and  allow  the 
passenger  to  hold  it  until  all  intermediate  stations  are  passed.    C.,  B. 
&  Q.  R.  R.  v.  Griffin,  68  111.  499. 

2320.  If  a  passenger  pays  his  fare  to  a  certain  station  and  the 
ticket  agent  by  mistake  gives  him  a  ticket  to  an  intermediate  station, 
the  demand  of  fare  a  second  time  by  the  conductor  will  be  a  breach 
of  the  implied  contract  on  the  part  of  the  company  to  carry  him  to 
the  proper  station.    By  paying  such  demand  his  right  of  action  will 
be  as  complete  as  if  he  resists  the  demand  and  suffers  himself  to  be 
ejected.    Ib. 

2321.  DISORDERLY  CONDUCT.    A  passenger  must  observe  proper 
decorum  and  observe  all  reasonable  rules  adopted  by  company.    He  is 
is  not  authorized  to  interpose  resistance  to  every  trivial  imposition  to 
which  he  may  feel  himself  exposed,  that  must  be  ovt  rcome  by  coun- 
terforce,  to  preserve  subordination.    Ib. 

2322.  Where  a  passenger's  ticket,  by  mistake,  did  not  take  him  to 
the  proper  station,  and  20  cents  fare  was  demanded  of  him,  which 
he  refused  to  pay,  and  suffered  himself  to  be  forcibly  ejected,  and  aft- 
erwards entered  another  car,  and  while  the  conductor  was  making 
change,  used  profane  and  obscene  language  in  the  presence  of  ladies, 
&c.,  for  which  he  was  again  expelled,  no  unnecessary  force  being 
used  :   Held,  that  he  was  not  entitled  to  recover  anything.    Ib. 

2323.  The  use  of  grossly  profane  and  obscene  language  by  a  pas- 
senger in  a  railway  coach,  where  there  are  ladies,  is  such  a  breach  of 
decorum,  no  matter  if  provoked  to  it,  as  will  work  a  forfeiture  of  his 
right  to  be  carried  as  a  passenger,  and  the  conductor  will  have  the 
right  to  expel  him  from  the  cars,  using  no  more  force  that  is  neces- 
sary.    C.,  S.  &  Q.  R.  R.  v.  Griffin,  68  111.  499. 

2324.  Carriers  of  passengers  may  lawfully  require  those  seeking  to 
be  carried   to  purchase  tickets  where   convenient  facilities  to  that 
end  are  afforded,  to  exhibit  them  to  the  persons  designated  by  the 
carrier  for  that  purpose,  and  surrender  them  after  securing  their  seats. 
These  are  but  reasonable  rules.    Pullman  Palace  Car  Co.  v.  Reed,  75 
111.  125. 

2325.  Case  stated  where  passenger  lost  his  berth  ticket  in  a  sleep- 
ing car,  and  was  put  out  of  the  car.  Pullman  Palace  Car  Co.  v.  Reed, 
75  111.  125. 

2326.  Expulsion  of  a  man  intruding  himself  into  "ladies'  private 
room"  at  a  depot.    T.,  W.  &  W.  Ry.  v.  Williams,  77  111.  354. 

2327.  FAMILY  TICKET.    A  railroad  ticket,  which  on  its  face,  pur- 


AND  EMINENT  DOMAIN.  277 

ports  to  be  for  the  exclusive  use  of  a  man  and  family,  authorizes  a 
son  who  is  residing  with  him  as  a  member  of  his  family,  to  ride  upon 
the  road,  although  he  may  be  over  twenty  years  of  age.  C.  &  N.W . 
Ry.  v.  Chisholm,  Jr.,  79  111.  584. 

2328.  If  the  purchaser  of  such  ticket  is  at  his  purchase,  informed 
that  a  son  over  twenty-one,  would  not  under  the  regulations  be  per- 
mitted to  ride  on  it,  such  regulation  will  form  a  part  of  the  contract, 
and  be  binding  on  the  purchaser  or  any  one  attempting  to  ride  on 
it.    Ib. 

2329.  To  prove  that  a  son  of  the  holder  of  a  family  ticket  had 
notice  of  a  regulation  that  a  son  over  age  could  not  ride  on  the  same, 
evidence  that  certain  schedules  were  printed  and  furnished  to  the  pub- 
lic by  the  company,  is  not  admissable.    It  is  proper,  however,  to  show 
that  such  schedule  was  furnished  to  the  purchaser  of  the  ticket.    Ib. 

2330.  DAMAGES.    Where  a  person  who  is  rightfully  on  a  railway 
car  and  has  paid  his  fare,  is  unlawfully  expelled  therefrom,  he  will  be 
entitled  to  recover  more  than  nominal  damages,  even  though  he  sus- 
tains no  pecuniary  loss  or  actual  injury  to  his  person.    C.  &  N.  W,  Ry. 
v.  Chisholm,  Jr.,  79  111.  584. 

2331.  Where  a  passenger  conducts  himself  in  an  orderly  and  decent 
manner  and  offers  to  pay  the  fare  fixed  by  the  company,  his  expulsion 
by  the  conductor  in  a  forcible  manner,  is  unjustifiable,  and  the  com- 
pany will  be  liable  civilly  in  an  action  for  an  assault  and  battery.    C., 
B.  &  Q.  R.  R.  v.  Bryan,  90  111.  126. 

2332.  Where  a  passenger  tenders  the  conductor  a  certain  amount 
of  fare  to  be  carried  to  a  certain  station,  which  is  less  than  the  rate 
fixed  by  the  company,  saying  he  will  pay  no  more,  and  the  conductor 
retains  a  sum  sufficient  to  take  the  passenger  to  an  intermediate  sta- 
tion, and  returns  the  balance,  the  passenger  will  have  the  right  on 
reaching  such  intermediate  station,  to  pay  the  fare  demanded  from 
that  point  to  the  place  of  his  destination,  and  upon  his  offering  to  pay 
the  same,  he  cannot  rightfully  be  put  off  the  train.    Ib. 

2333.  A  railway  company  has  no  power  to  adopt  rules  and  regula- 
tions prohibiting  decently  behaved  persons  from  traveling  on  its  road, 
who  will  pay  their  fare  and  conform  to  all  reasonable  requirements 
for  the  safety  and  comfort  of  passengers.    Ib . 

2334.  When  exemplary    damages  are  recoverable  for  wrongful 
expulsion.    C.,  B.  &  Q.  R.  R.  v.  Bryan,  90  111.  126. 

2335.  A  carrier  must  not  only  protect  his  passengers  against  the 
violence  and  insults  of  strangers  and  co-passengers,  but  also  against 
the  violence  and  assaults  of  his  own  servants.    If  this  protection  is 
not  afforded  and  the  passenger  is  assaulted  and  beaten  through  the 
negligence  of  the  carrier's  servants,  he  will  be  responsible  for  the 
injury,  especially  for  the  assaults  of  his  servants.    Ch.  &  E.  R.  R.  v. 
Flexman,  103  111.  546. 

2336.  Where  a  conductor  of  a  railway  company  acting  under  in- 
structions, refuses  to  accept  a  ticket  issued  by  another  company  as 
agent  of  the  former,  and  demands  full  fare,  the  passenger,  if  his  ticket 
was  issued  by  authority,  may  pay  the  fare  again,  and  recover  of  the 
company  to  whom  paid  the  amount  so  paid,  as  for  a  breach  of  the  con- 
tract, or  he  may  refuse  to  pay,  and  leave  the  train  when  so  ordered 
and  sue  and  recover  of  the  company  all  damages  sustained  in  conse- 
quence of  his  expulsion.    But  if  he  refuses  to  leave,  he  cannot  recover 
for  the  force  used  to  put  him  off,  if  no  more  is  used  than  necessary. 
Penn.  R.  R.  v.  Connell,  112  111.  295. 

2337.  The  responsibility  of  company  for  injury  to  passenger  does 
not  depend  on  his  payment  of  fare.    If  he  refuses  to  pay,  the  company 


278  RAILBOADS,  WAREHOUSES, 

may  eject  him.  0.  &  M.  R.  R.  v.  Muhling,  30  111.  9.  See  also  C.  &  A. 
R.  ~R.  v.  Randolph,  53  111.  510;  Arnold  v.  I.  C.  R.  R.,  83  111.  273;  C.,  B. 
&  Q.  R.  R.  v.  McLallen,  84  111.  109;  Shelton  v.  L.  X.  &  M.  8.  Ry.,  29 
Ohio  St.  214;  Crawford  v.  C.,  H.  &  D.  R.  R.,  26  Ohio  St.  580;  Towiia- 
hend  v.  N.  Y.  C.  &  H.  R.  R.,  56  N.  Y.  296. 

2338.  BADGE.     §  32.  Every  conductor,  baggage-master, 
brakeman,  or  other  servant  of  any  railroad  corporation  in 
this  state,  employed  on  a  passenger  train,  or  about  the  pas- 
senger depots,  shall  wear  upon  his  hat  or  cap  a  badge  which 
shall  indicate  his  office.     No  conductor  without  such  badge 
shall  demand,  or  be  entitled  to  receive  from  any  passenger, 
any  fare,  toll  or  ticket,  or  exercise  any  of  the  powers  of  his 
office;  and  neither  shall  any  other  of  said  officers  or  servants, 
without  such  badge,  be  authorized  to  meddle  or  interfere 
with  any  passenger,  his  baggage  or  property.     [B.  S.  1887, 
p.   1019,  §  95;  S.    &  C.,  p.    1944,   §  95;   Cothran,   p.   1159, 
§81.] 

2339.  COMMON  LAW  LIABILITY  NOT  TO  BE  LIMITED.    §  33. 
That  whenever   any  property  is  received  by   any  railroad 
corporation  to  be  transported  from   one  place  to  another, 
within  or  without  this  state,  it  shall  not  be  lawful  for  such 
corporation  to  limit  its  common  law  liability  safely  to  deliver 
such  property  at  the  place  to  which  the  same  is  to  be  trans- 
ported, by  any  stipulation  or  limitation  expressed  in   the 
receipt  given  for  the  safe  delivery  of  such  property.     [R.  S. 
1887,  p.  1019,  §  9&;    S.  &  C.,  p.  1945,  §  96;    Cothran,  p.  1159, 
§82.     See  ante,  162.] 

2340.  Railway  companies  as  common  carriers  may  restrict  their 
common  law  liability  by  such  contracts  as  may  be  specially  agreed 
upon,  except  their  liability  for  gross  negligence  or  willful  misfeas- 
ance.   /.  C.  R.  R.  v.  Morrison,  19  111.  136. 

2341.  WHEN  AUTHORITY  TO  SIGN  PRESUMED.    Where  a  shipper 
of  cattle  made  such  a  contract  and  delivered  part  of  the  cattle,  it  will 
be  presumed  that  other  persons,  delivering  the  remainder  acted  as 
agents,  and  had  authority  to  sign  similar  contracts.    Ib. 

2341a.  RESTRICTION  BY  NOTICE.  This  liability  cannot  be  re- 
stricted by  notice,  even  when  it  is  brought  home  to  the  knowledge  of 
the  owner.  Western  Transp.  Co.  v.  Newhall,  24  111.  466. 

2342.  No  distinction  can  be  made  in  a  notice  in  the  newspapers  or 
by  hand  bills,  or  one  printed  on  the  back  of  a  receipt  given.    Ib. 

2343.  Notice  printed  on  the  back  of  carrier's  receipt,  forms  no 
part  of  the  contract,  and  need  riot  be  noticed  in  the  declaration.    The 
express  assent  of  the  shipper  to  such  restriction  must  be  proved,  in 
order  to  give  effect,  to  it.    Ib. 

2344.  PRESUMPTION  AS  TO  SHIPPER'S  ASSENT.    As  the  carrier  is 
bound  to  receive  and  carry  all  goods  offered  him  subject  to  all  the  in- 
cidents of  his  employment,  there  can  be  no  presumption  that   the 
owner  intended  to  abandon  any  of  his  rights.    Ib . 

2345.  BURDEN  OF  PROOF.    The  onus  of  proving  the  contract  re- 
stricting the  carrier's  liability  is  upon  him.    Ib. 

2345a.    SPECIAL  CARRIER.    The  rule  is  different  with  persons  who 


AND  EMINENT  DOMAIN.  279 

are  not  common  carriers  and  who  are  not  bound  to  render  the  service 
required.  They  may  make  their  own  terms,  and  the  owner  of  goods 
is  presumed  to  assent  to  them  by  the  delivery  of  the  goods.  Ib. 

2846.  WHAT  MAY  BE  DONE  BY  NOTICE.  The  carrier  may  qualify 
his  liability  by  a  general  notice  to  all  who  may  employ  him,  of  any 
reasonable  requisition  to  be  observed  in  regard  to  the  manner  of  de- 
livery and  entry  of  parcels  and  various  other  matters,  but  he  cannot 
avoid  his  liability  as  insurer  by  any  such  notice.  Ib. 

2347.  RESTRICTION  IN  FREE  PASS.    The  acceptance  of  a  free  pass 
with  an  indorsement  printed  thereon  exempting  the  company  from 
all  liability  for  injury  caused  by  negligence  to  the  person  or  property 
of  the  holder,  will  protect  the  company  for  any  injury  not  the  result 
of  gross  or  reckless  negligence.    /.  C.  R.  R.  v.  Read,  37  111.  484. 

2348.  Kailway  companies  have  the  right  to  restrict  their  common 
law  liability  as  common  carriers,  by  such  contracts  as  may  be  agreed 
upon  specially,  they  still  remaining  liable  for  gross  negligence  or  will- 
ful misfeasance  against  which  good  morals  and  public  policy  forbid 
they  should  be  permitted  to  stipulate.    Ib. 

2349.  A  railway  company  may  restrict  its  liability  for  loss  or  injury 
to  property  placed  in  its  charge  for  transportation,  by  special  agree- 
ment, the  carrier  being  still  held  responsible  for  gross  negligence  or 
willful  misfeasance.    /.  C.  R.  R.  v.  Smyser  &  Co.,  38  111.  354. 

2350.  The  rule  is  limited  to  cases  where  there  is  a  special  contract. 
It  is  not  competent  to  limit  the  liability  of  the  carrier  by  merely  prov- 
ing a  usage  on  his  part  in  giving  bills  of  lading  exempting  him  from 
certain  classes  of  losses.    Ib . 

2351.  Where  goods  are  shipped  under  a  verbal  contract,  and  a  day 
or  two  after  their  delivery,  the  subsequent  making  out  and  signing  a 
freight  bill  with  conditions  and  limitations,  will  not  alter  the  carrier's 
liability  under  the  verbal  agreement,  unless  it  was  accepted  as  the 
contract  of  the  parties,  and  this  is  a  question  of  fact.    Baker  v.  M.  8. 
&N.Ind.R.  .R.,  42  111.  73. 

2352.  Where  receipt  is  given  for  the  goods  containing  a  provision 
limiting  the  common  law  liability  of  the  company,  and  the  shipper 
accepts  the  same  with  a  knowledge  of  its  terms,  and  intending  to 
assent  to  the  restrictions  contained  in  it,  it  becomes  his  contract  as 
fully  as  if  he  had  signed  it.    Adams  Express  Co.  v.  Haynes,  42 
111.  89. 

2353.  The  simple  delivery  of  such  a  receipt  to  the  shipper  is  not 
conclusive  upon  the  latter.    Whether  he  had  knowledge  of  its  terms 
and  assented  to  its  restrictions,  is  for  the  jury  to  determine  as  a  ques- 
tion of  fact  upon  evidence  aliunde,  and  all  the  circumstances  attend- 
ing the  giving  of  the  receipt  are  admissible  in  evidence  on  that 
question.    Ib . 

2354.  While  a  railway  company  may  protect  itself  against  certain 
risks  assumed  by  .common  carriers,  and  belonging  to  their  vocation,  it 
is  contrary  to  good  morals  and  public  policy  that  it  should  be  allowed 
to  stipulate  against  its  own  gross  negligence  or  willful  defaults.    /.  C. 
R.R.v.  Adams,  42  111.  474. 

2355.  A  contract  for  the  shipment  of  hogs  provided  that  the  com- 
pany should  not  be  liable  for  loss  "by  delay  of  trains,  or  any  damage 
said  property  might  sustain,  except  such  as  might  result  from  a  collis- 
ion of  a  train,  or  where  cars  were  thrown  from  the  track  in  course  of 
transportation."  •  During  the  trip,  one  car  was  thrown  from  the  track 
by  reason  of  a  broken  rail,  while  all  the  cars  containing  the  hogs  re- 
mained on  the  track:  Held,  that  the  company  was  liable  for  whatever 
hogs  were  lost  or  whatever  shrinkage  occurred  by  reason  of  the  delay 


280  EAILEOADS,  WAKEHOUSES, 

caused  by  the  accident,  but  not  for  delay  caused  by  cold  weather. 
I.C.R.  R.  v.  Owens,  53  111 .  391. 

2356.  The  carrier  cannot  claim  exemption  from  liability  for  an  in- 
jury to  corn  shipped  caused  by  delay  in  transportation,  under  a  clause 
in  the  bill  of  lading  which  relieves  him  from  loss  on  perishable  prop- 
erty.   /.  C.  R.  R.  v.  McClellan,  54  111.  58. 

2357.  While  the  carrier  who  first  receives  the  goods  to  be  carried 
over  his  and  other  lines  may  not  by  general  notice,  yet  he  may,  by 
special  contract  with  the  shipper,  limit  his  liability  to  such  damage  or 
loss  as  may  occur  on  his  own  line  of  carriage.    A  carrier  may  by 
special  contract  relieve  himself  of  his  common  law  liability.    I.  C.  R. 
R.  v.  Frankenberg,  54  111.  88. 

2358.  If  a  shipper  takes  a  receipt  from  the  carrier  to  whom  the 
goods  are  delivered  in  the  first  instance,  containing  a  clause  that  the 
carrier  so  receiving  assumes  no  other  liability  for  their  safety  or  safe 
carriage,  than  may  be  incurred  on  its  own  road,  with  knowledge  of  its 
terms,  and  intending  to  assent  to  the  restrictions  contained  in  it,  the 
carrier  will  be  free  from  his  common  law  liability  for  loss  occurring 
beyond  his  own  line.    Whether  he  assented  to  it  is  a  question  of  fact. 
Ib. 

2359.  A  box  of  goods  was  delivered  to  a  railway  company  marked 
to  a  point  beyond  its  line  of  road.    The  bill  of  lading  was  called  by 
the  company  its  "through  freight  contract,"  and  it  contained  this 
clause:   "Which  we  promise  to  transport  over  the  line  of  this  railway, 
to  the  company's  freight  station  at  its  terminus,  and  deliver  to  the 
consignee  or  owner,  or  to  such  company  (if  the  same  are  to  be  for- 
warded beyond  the  limits  of  this  railway)  whose  line  may  be  consid- 
ered a  part  of  the  route  to  the  place  of  destination  of  said  goods,  it 
being  distinctly  understood  that  the  responsibility  of  this  company 
shall  .cease  at  the  station  where  such  goods  are  delivered  to  such  per- 
son or  carrier."    Among  the  conditions  printed  in  the  bill  of  lading 
was  this:    "The  responsibility  of  this  company  as  a  common  carrier 
under  this  bill  of  lading  to  commence  on  the  removal  of  the  goods 
from  the  depot  on  the  cars  of  the  company  and  to  terminate  where 
unloaded  from  the  cars  at  the  place  of  delivery."    This  freight  was 
never  unloaded  or  delivered  at  this  terminus,  but  proceeded  to  its 
destination  in  the  cars  in  which  it  was  received:    Held,  that  this  was 
a  through  freight  contract,  and  the  company  liable  beyond  the  termi- 
nus of  their  road.    T.,  P.  &  W.  Ry  v.  Merriman,  52  111.  123. 

2360.  RECEIPT  AS  A  CONTRACT.    The  delivery  of  a  receipt  for  the 
goods  to  the  shipper  is  not  conclusive  upon  him  that  the  conditions 
therein  set  forth  constitute  a  contract.     Whether  the  shipper  had 
knowledge  of  its  terms  and  assented  to  its  restrictions,  is  a  question 
of  fact  for  the  jury  to  determine  upon  evidence  aliunde,  and  all  the 
circumstances  attending  the  giving  of  the  receipt  are  admissible  in 
evidence  on  the  question.    A.M.  U.  Express  Co.  v.  Schier,  55  111.  140. 

2361.  Railway  company  receiving  goods  to  be  shipped  to  a  point 
beyond  the  terminus  of  its  line,  may  by  express  agreement  limit  its 
liability  te  its  own  route  and  to  its  terminus.  C.  &  N.  W.  Ry.  v.  Mont- 
fort,  60  111.  175. 

2362.  Where  the  shipper  takes  a  receipt  f  com  the  company  restrict- 
ing its  liability  to  its  own  line  of  road,  if  he  accepts  it  with  a  full 
knowledge  of  such  conditions  and  intending  to  assent  to  them,  it  be- 
comes his  contract  as  fully  as  if  he  had  signed  it.    Ib. 

2363.  Whether  the  shipper  accepted  a  receipt  with  a  knowledge  of 
such  restriction  and  with  the  intention  to  assent  to  it,  is  a  question  of 
fact  for  the  jury.    C.  &  ZV.  W.  Ry.  v.  Montfort,  60  111.  175. 

2364.  The  insertion  by  the  carrier  in  the  shipping  receipt  that  the 


AND  EMINENT  DOMAIN.  281 

company  will  not  be  liable  for  loss  beyond  a  certain  sum,  being  much 
less  than  the  value  of  the  goods  shipped,  will  not  release  the  carrier, 
unless  it  appears  that  the  shipper  knew  of  and  assented  to  the  limita- 
tion. Adams  Express  Co.  v.  titettaners,  61  111.  184. 

2365.  Where  the  shipper  has  assented  to  the  clause  in  the  receipt 
that  the  carrier  shall  not  be  liable  beyond  a  given  sum,  and  as  to  that, 
only  for  gross  negligence,  the  burden  of  proof  of  due  care  will  rest  on 
the  carrier.    It  cannot  by  any  contract  excuse  itself  from  reasonable 
care  and  diligence.    Ib. 

2366.  Where  no  question  is  made  as  to  the  knowledge  of  the  ship- 
per of  a  provision  in  the  bill  of  lading,  that  the  carrier  should  not  be 
liable  for  loss  or  damage  to  the  property  by  fire  or  other  casualty,  while 
in  transit,  or  at  depots  or  landing,  at  the  point  of  delivery,  it  will  be 
inferred  that  the  shipper  received  the  bill  with  knowledge  of  its  con- 
tents and  agreed  to  its  terms.    Anchor  Line  v.  Knowles,  66  111.  150. 

2367.  If  the  consignor  of  a  package  of  money  assents  to  a  clause  in 
the  receipt  stating  that  the  carrier  company  undertook  to  forward  the 
package  "to  the  nearest  point  of  destination  reached  by"  such  com- 
pany, it  becomes  his  contract  as  fully  as  if  he  had  signed  it,  and  he 
will  be  bound  by  its  terms,  and  cannot  hold  the  company  liable  for 
delays  of  another  company  taking  the  package.    United  States  Express 
Co.  v.  Haines,  67  111.  137. 

2368.  If  a  shipper  takes  a  receipt  for  his  goods  from  a  common 
carrier  which  contains  conditions  limiting  the  liability  of  the  carrier, 
with  a  full  understanding  of  such  conditions,  and  intending  to  assent 
to  them,  it  becomes  his  contract  as  fully  as  if  he  had  signed  it  and  he 
will  be  bound  by  the  conditions.    Anchor  Line  v.  Dater,  68  111.  369. 

2369.  It  does  not  follow  because  the  carrier  delivers  to  the  shipper 
a  receipt  containing  limitations  of  his  liability,  that  the  shipper  assents 
thereto,  as  he  has  no  alternative  but  to  accept  such  a  receipt  as  the 
carrier  may  give.    Whether  the  shipper  has  assented  to  such. condi- 
tions, is  a  question  of  fact  for  the  jury.    Anchor  Line  v.  Dater,  68  111. 
369. 

2370.  A  limitation  of  the  liability  of  an  express  company  not  to 
exceed  $50,  unless  the  value  of  the  goods  is  truly  stated,  if  brought  to 
the  knowledge  of  the  consignor,  is  reasonable  and  consistent  with  pub- 
lic policy.    Openheimer  &  Co.  v.  United  States  Express  Co.,  69  111.  62. 

2371.  The  established  legal  construction  of  conditions  in  the  con- 
tract of  carriers  exempting  them  from  liability  is,  not  to  treat  them 
as  providing  against  losses  or  injuries  occasioned  by  actual  negligence 
on  their  part.    Ib. 

2372.  The  fact  that  an  express  company  has  settled  for  other  losses 
without  insisting  on  the  restrictions  of  its  liability  in  the  contract, 
will  not  preclude  it  from  raising  the  question  of  its  liability  in  a  sim- 
ilar case  subsequently  arising.    Ib. 

2373.  A  distinction  exists  between  the  effect  of  those  notices  by  a 
carrier  by  which  it  is  sought  to  discharge  him  from  duties  which  the 
law  has  annexed  to  his  employment,  and  those  designed  simply  to 
insure  good  faith  and  fair  dealing  on  the  part  of  his  employer.    In  the 
former,  notice  without  assent  to  the  attempted  restriction^  is  ineffect- 
ual, while  in  the  latter,  actual  notice  alone  will  be  sufficient.    Ib. 

2374.  WThere  a  carrier  delivers  goods  to  a  forwarder,  who  is  its 
agent  and  the  agent  of  the  company  to  whom  the  same  is  delivered, 
and  he  gives  a  bill  of  lading  limiting  the  duty  of  the  latter  to  deliver 
the  goods  to  another  company,  this  will  make  the  bill  of  lading  a  con- 
tract binding  upon  the  first  and  second  carriers,  and  the  second  will 
not  be  responsible  for  the  delivery  of  the  goods  to  the  consignee  by 
the  last  carrier.     C.  &  N.  W.  Ry.  v.  N.  L.  Packet  Co.,  70  111.  217. 


282  BAILROADS,  WAKEHOUSES, 

2375.  Common   carriers  may  limit  their  common  law  liability. 
Field  v.  C.  &  R.  I.  R.  R.,  71  111.  458. 

2376.  Where  a  railway  company  receives  goods  marked  for  a  par- 
ticular place,  it  is  bound  by  the  common  law  to  deliver  at  that  place; 
but  it  may  restrict  this  liability  by  a  contract  fairly  and  understand- 
ingly  made;  and  where  so  made,  it'  in  the  form  of  a  bill  of  lading,  or 
otherwise,  and  the  terms  are  understood  and  accepted  by  the  shipper, 
it  becomes  the  contract  of  the  parties.    Field  v.  C.  &  R.  I.  R.  R.,  71 
111.  458. 

2377.  The  receipt  or  bill  of  lading  of  goods  marked  to  New  York, 
recited  that  the  goods  were  to  be  transported  over  defendant's  road  to 
a  certain  station,  and  there  delivered  in  good  order  to  another  com- 
pany, whose  line  was  a  part  of  the  route  to  the  place  of  destination,  and 
that  the  liability  of  the  defendant  should  cease  when  the  goods  were 
so  delivered  at  that  station  to  the  other  company.     The  shipper 
accepted  this  receipt  with  the  knowledge  of  its  contents:    Held,  that 
it  became  a  binding  contract  and  that  the  liability  of  defendant  ended 
with  the  delivery  of  the  goods  to  the  next  carrier.   Field  v.  C.  &.  R.  I. 
R.  R.,  71  111.  458. 

2378.  Whether  the  shipper  has  knowledge  of  and  assents  to  a  clause 
in  a  bill  of  lading  or  receipt  for  goods  delivered  to  a  common  carrier, 
whereby  the  common  law  liability  is  limited,  is  a  question  of  fact  to 
be  determined  by  the  evidence  in  each  case.  Field  v.  C.  &  R.  I.  R.  R., 
71  111.  458. 

2379.  Where  goods  are  delivered  to  a  carrier  in  Wisconsin,  the  con- 
tract to  be  performed  there,  the  laws  of  that  state  will  govern  as  to 
the  construction  of  the  contract,  and  determine  the  extent  of  the  car- 
rier's undertaking.    M.  &  St.  P.  Ry.  v.  Smith,  74  111.  197. 

2380.  Where  a  carrier  receives  live  stock  for  transportation,  and  a 
loss  is  sustained  by  the  owner  in  consequence  of  their  not  being  sup- 
plied with  water,  the  burden  of  proof  to  show  an  exemption  from  lia- 
bility rests  upon  the  carrier.    T.,  W.  &  W.  Ry.  v.  Hamilton,  76  111.  393. 

2381.  It  is  only  where  the  contract  is  for  through  transportation) 
that  each  connecting  carrier  will  be  entitled  to  the  benefits  and 
exemptions  of  the  contract  between  the  shipper  and  first  carrier.  M.  D. 
Transp.  Co.  v.  Bolles,  80  111.  473. 

2382.  Where  a  carrier  receives  goods  for  transportation  marked  to 
a  place  beyond  the  terminus  of  its  line,  without  any  special  contract 
its  liability  as  an  insurer  will  continue  until  it  delivers  them  to  a  con- 
necting carrier.    M.  Des.  Transp.  Co.  v.  Bolles,  80  111.  473. 

2384.  Where  goods  are  delivered  to  a  carrier  to  be  carried  to  a 
place  and  the  charges  for  transporting  to  that  place  are  paid  in  full, 
and  there  is  no  contract  limiting  its  liability,  such  carrier  will  be 
responsible  for  the  delivery  of  the  goods  at  the  place  named,  notwith- 
standing its  line  ends  before  reaching  such  place  and  the  goods  are 
delivered  to  another  carrier  in  good  order  at  the  termination  of  its 
line.    Adams  Express  Co.  v.  Wilson,  81  111.  339. 

2385.  The  doctrine  is  settled  in  this  state  that  railroad  companies, 
may,^  by  contract,  exempt  themselves  from  liability  on  account  of  the 
negligence  of  their  servants,  other  than  that  which  is  gross  and  will- 
ful.   Arnold  v.  /.  C.  R.  R.,  83  111.  273. 

2386.  The  undertaking  of  a  railway  company  to  carry  a  passenger 
on  a  freight  train,  and  the  extra  care  and  expense  required  in  such 
case,  form  a  sufficient  consideration  for  a  contract  made  with  a  pas- 
senger restricting  and  limiting  its  liability;  but  the  same  terms  must 
be  extended  to  and  applied  to  all  persons  desiring  to  ride  on  such 
trains.    Ib. 


AND  EMINENT  DOMAIN.  283 

2387.  The  carrier  may  limit  its  obligation  to  carry  safely  over  its 
own  lines  or  only  to  points  reached  by  its  own  carriages,  and  for  safe 
storage  and  delivery  to  the  next  carrier  in  the  route  beyond,  although 
the  goods  are  marked  to  a  point  beyond  its  line.    Erie  Ry.  v.  Wilcox, 
84  111.  239. 

2388.  A  clause  in  the  receipt  given  the  owner  for  goods  so  restrict- 
ing the  carrier's  obligation,  if  understandingly  assented  to  by  the 
shipper,  will  as  effectually  bind  him  as  if  he  had  signed  it.    Ib. 

2389.  Where  the  exemption  is  once  established,  the  carrier  will  only 
be  responsible  on  account  of  actual  negligence  or  willful  misconduct. 
The  rule  is  the  same  if  the  goods  are  shipped  to  a  point  beyond  the 
carrier's  own  line.    Ib. 

2390.  LIMITING  LIABILITY  BY  NOTICE.    A  carrier  cannot  dis- 
charge itself  from  duties  which  the  law  has  annexed  to  the  employ- 
ment, by  notice  alone  to  the  shipper.    The  shipper  must  assent  to  it, 
to  make  it  effectual;  but  it  is  otherwise  in  respect  to  those  duties 
designed  simply  to  insure  good  faith  and  fair  dealing.    There  a  notice 
is  sufficient.    Erie  Ry.  v.  Wilcox,  84  111.  239. 

2391.  The  law  on  grounds  of  public  policy,  will  not  permit  a  com- 
mon carrier  of  passengers  or  freight  to  contract  against  liability  for 
its  own  actual  negligence  or  that  of  its  servants  or  employes.    Erie 
Ry.  v.  Wilcox,  84  111.  239. 

2392.  If  a  passenger  on  a  railway  train  while  riding  under  a  free 
ticket  containing  the  usual  restrictions,  is  injured  by  an  accident  he 
cannot  hold  the  company  liable,  except  for  gross  negligence,  or  a  degree 
of  negligence  having  the  character  of  recklessness.  •  T.,  W.  &  W.  Ry.  v. 
Beggs,  85  111.  80. 

2393.  A  clause  in  a  receipt  or  bill  of  lading  exempting  the  carrier 
from  a  common  law  liability  is  not  binding  on  the  shipper  unless  it 
appears  that  he  knew  of  and  assented  to  the  exemption,  and  this  is  a 
question  of  fact.    M.  D.  Transp.  Co.  v.  Theilbar,  86  111.  71. 

2394.  A  common  carrier  is  bound  to  accept  and  safely  carry  goods 
when  properly  tendered  for  shipment,  unless  destroyed  by  the  act  of 
God  or  the  public  enemy,  and  has  no  right  to  exempt  itself  from  loss 
by  fire,  except  by  virtue  of  a  special  contract  to  that  effect.    It  cannot 
limit  its  liability  by  its  own  act  alone.    M.  D.  T.  Co.  v.  Theilbar,  86 
111.  71. 

2395.  Where  the  bill  of  lading  given  shows  the  goods  are  to  be  for- 
warded to  a  particular  place  only,  which  is  short  of  their  destination, 
and  the  consignor  has  been  a  frequent  shipper  by  the  same  line  and 
was  in  the  habit  of  receiving  like  bills  of  lading,  it  will  be  presumed 
he  was  familiar  with  its  contents  and  assented  to  the  same.    M.  D.  & 
Tr.  Co.  v.  Moore,  88  111.  136. 

2396.  The  right  of  a  carrier  to  limit  its  common  law  liability  by 
contract,  if  made  fairly  and  advisedly  on  behalf  of  the  shipper,  cannot 
be  denied;  but  the  mere  fact  that  the  bill  of  lading  given  contains  a 
clause  exempting  the  carrier  from  loss  of  the  goods  by  fire,  cannot  be 
held  conclusive  of  such  contract.    M.  D.  Trans.  Co.  v.  Leysor,  89  111.43. 

2397.  If  a  shipper  with  full  knowledge  of  the  terms  and  conditions 
of  a  bill  of  lading,  assents  to  and  accepts  the  same  as  the  contract  under 
which  the  goods  are  shipped,  then  the  bill  of  lading  will  constitute  a 
binding  contract  which  will  control  the  rights  and  liabilities  of  the 
parties.    Whether  the  shipper  knows  the  terms  and  conditions  of  a 
bill  of  lading  and  assents  to  the  same,  is  a  question  ot  fact.    Ib . 

2398.  Where  the  shipper  has  no  knowledge  that  the  bill  of  lading 
given  contains  a  provision  releasing  the  carrier  from  liability  for  loss 
by  fire,  and  the  goods  are  destroyed  by  tire  before  reaching  their  desti- 


284  EAILEOADS,  WAREHOUSES, 

nation,  and  while  in  the  custody  of  the  carrier,  the  latter  will  be  liable 
to  the  owner  for  their  value.    /&. 

2899.  A  common  carrier  can  only  limit  or  restrict  his  liability  by 
agreement,  and  where  the  carrier  gives  a  receipt  for  goods  to  be  shipped, 
containing  a  restriction  of  his  liability,  it  must  appear  that  the  ship- 
per was  aware  of  such  restrictions,  otherwise  there  is  no  presumption 
of  his  assent  thereto.  M.  D.  Trans.  Co.  v.  Jcesting,  89  111.  152. 

2400.  To  make  such  a  restriction  binding  on  the  shipper,  he  must 
expressly  agree  to  it,  or  he  must  accept  the  receipt  under  such  circum- 
stances as  clearly  show  his  assent  to  the  restriction.    The  receiving  of 
the  receipt  does  not  prove  assent,  but  if  the  party  reads  the  receipt 
and  makes  no  objection,  his  assent  may  be  inferred.    Ib. 

2401.  In  the  absence  of  evidence,  it  will  be  presumed  that  the  ship- 
per being  the  merchant  who  sold  the  goods,  had  only  authority  to  ship 
them  with  all  the  liabilities  of  the  carrier  attaching,  without  excep- 
tions of  any  description.    Ib. 

2402.  Where  no  receipt  is  given  at  the  time  a  package  is  delivered 
to  an  express  company  tor  transportation,  the  company  cannot  limit 
its  liability  by  a  receipt  afterwards  given,  where  the  proof  negatives 
all  presumption  of  any  knowledge  on  the  part  of  the  shipper  that  the 
receipt  contained  a  clause  limiting  the  carrier's  liability,  or  that  the 
carrier  claimed  any  such  limitation.    Am.  Express  Co.  \ .  Spellman, 

90  111.  455. 

2403.  A  shipper  of  goods  is  not  bound  by  a  clause  in  a  carrier's 
receipt  or  bill  of  lading  given  on  the  receipt  of  goods  for  transporta- 
tion, limiting  the  common  law  liability  of  the  carrier,  unless  the 
shipper  assents  to  the  same.    Erie  &  Western  Transp.  Co.  v.  Dater. 

91  111.  195. 

2404.  The  assent  of  a  shipper  to  the  conditions  in  a  receipt'or  bill 
of  lading  limiting  the  carrier's  liability  will  not  be  inferred  from  the 
mere  fact  of  acceptance  of  the  bill  or  receipt  without  objection.    Nor 
will  it  be  conclusively  inferred  from  the  fact  of  the  previous  accept- 
ance of  a  large  number  of  similar  bills  not  filled  up  by  the  shipper  or 
held  in  his  possession  to  be  filled  up.    Ib. 

2405.  The  acceptance  of  a  bill  of  lading  containing  a  restriction  of 
the  carrier's  liability  and  the  previous  practice  of  giving  and  receiv- 
ing similar  bills  of  lading,  are  evidence  tending  to  show  that  the 
limitation  of  liability  therein,  was  assented  to  by  the  shipper;  but 
neither  one,  nor  both  such  facts  will  be  conclusive  evidence  thereof. 
76. 

2406.  The  law  of  the  state  in  which  the  contract  is  made  for  the 
transportation  of  goods,  must  control  as  to  its  nature,  interpretation 
and  effect.    M.  C.  R.  R.  v.  Boyd,  91  111.  268. 

2407.  An  agent  shipping  goods  a  few  days  after  the  delivery  of 
the  goods,  and  while  they  are  in  transit,  cannot  by  taking  a  receipt 
limiting  the  carrier's  liability,  bind  the  consignee.    M.  C.  R.  R.  v. 
Boyd,  91  111.  268. 

2408.  A  common  carrier  can  claim  no  exemption  from  liability 
for  the  loss  of  goods  entrusted  to  him,  except  such  as  is  given  by 
express  contract.    Boscowitz  v.  Adams  Express  Co.,  93  111.  523. 

2409.  The  contract  must  be  assented  to  by  the  shipper  with  a  view 
to  release  the  duties  imposed  by  the  law,  and  when  this  is  once  estab- 
lished the  carrier,  in  case  of  loss,  will  only  be  responsible  on  account 
of  negligence  or  willful  misconduct.    He  cannot  contract  against  his 
own  actual  negligence.    Boscowitz  v.  Adams  Express  Co.,  93  111.  523. 

2410.  A  clause  in  a  receipt  given  to  a  shipper  of  goods  limiting 
and  restricting  the  carrier's  liability  incident  to  its  general  employ- 


AND  EMINENT  DOMAIN.  285 

ment,  if  understandingly  assented  to  by  the  owner,  will  as  effectually 
bind  him  as  though  he  had  signed  it,  but  whether  such  restrictions 
have  been  assented  to  in  a  given  case,  is  always  a  matter  of  evidence. 
Ib. 

2411.  The  fact  that  the  owner  of  goods,  by  himself  or  clerk,  filled 
up  a  receipt  taken  for  goods  shipped,  is  evidence  tending  to  show  that 
the  shipper  had  notice  of  the  conditions  and  restrictions  in  the  print- 
ed part  thereof  and  assented  to  them,  but  it  is  not  conclusive .    It  is 
still  a  question  of  fact.    Ib. 

2412.  Where  carrier  gave  a  receipt  for  three  separate  distinct  bales 
of  furs,  containing  a  printed  clause  that  the  company  should  not  be 
liable  for  any  loss  or  damage  "of  any  box,  package  or  thing,"  for  over 
$50,  unless  the  true  value  thereof  was  therein  inserted:    Held,  that 
the  limitation  was  not  to  be  applied  to  the  three  bales,  but  as  to  each 
one  separately.    Ib. 

2413.  While  it  is  true  that  a  railroad  carrier  may  by  contract  re- 
strict its  liability  to  its  own  line,  there  is  no  doubt  that  it  may  also 
extend  its  liability  beyond  its  own  line.    St.  L.  &  I.  M.  R.  R.  v. 
Lamed,  103  111.  293. 

2414.  A  railway  company  by  accepting  and  acting  under  its  char- 
ter, becomes  a  carrier  of  persons  and  property,  and  the  law  imposes 
all  the  duties  and  liabilities  of  a  common  carrier  upon  it,  and  such 
company  cannot  exonerate  itself  from  such  duty  and  responsibility  by 
contract  with  others,  nor  in  anywise  escape  or  free  itself  from  liability, 
unless  released  by  the  general  assembly.    W.,  St.  L.  &  P.  Ry.  v.  Peyton, 
106  111.  534. 

2415.  A  provision  in  a  shipping  contract  voluntarily  and  under- 
standingly entered  into,  that  in  consideration  of  reduced  rates,  no 
claim  for  damages  should  be  made,  unless  made  in  writing  verified  by 
the  affidavit  of  the  shipper  and  delivered  to  the  general  freight  agent 
of  the  carrier  at  his  office  within  five  days  from  the  time  the  stock  is 
removed  from  the  cars,  will  be  binding  on  the  shipper,  and  is  not  void 
as  being  contrary  to  any  law  or  public  policy.     Black  v.  W.,  St.  L.  & 
P.  Ry.,  Ill  111.  351. 

2416.  A  carrier  may  by  special  contract  with  the  shipper,  limit  his 
liability  to  such  damage  or  loss  as  may  arise  on  his  own  line  of  car- 
riage.    W.,  St.  L.  &  P.  Ry,  v.  Jaggerman,  115  111.  407. 

2417.  Notwithstanding  a  provision  in  a  bill  of  lading  that  the  car- 
rier should  not  be  responsible  for  "damage  to  perishable  property  of 
any  kind  occasioned  by  delays  from  any  cause,"  he  may  and  will  be- 
come liable  for  delay  as  the  result  of  actual  negligence.    But  proof  of 
delay  merely,  is  not  sufficient  to  show  negligence  in  transporting  the 
goods.    Ib . 

2418.  In  an  action  by  the  shipper  of  apples  under  a  bill  of  lading 
exempting  the  carrier  from  liability  for  damage  to  perishable  property 
from  delay,  it  is  competent  for  the  defendant  to  prove  that  prior  to 
such  shipment  the  plaintiff  had  filled  up  similar  blank  bills  of  lading 
for  shipments  which  contained  the  same  stipulation  in  regard  to  per- 
ishable property,  as  going  to  show  the  plaintiff's  knowledge  of  and 
assent  to  such  provision.    Ib. 

2419.  The  common  law  liability  of  a  carrier  may  be  limited  by  a 
special  contract  signed  by  both  the  contracting  parties,  except  that 
public  policy  requires  that  the  carrier  should  not  be  allowed  to  stipu- 
late against  the  consequence  of  its  own  actual  negligence  or  willful 
default.    C.,  B.  &  Q.R.R.  v.  Hale,  2  Bradw.  150. 

2420.  Where  the  consignor  merely  takes  a  receipt  containing  a 
limitation  of  liability,  it  will  not  bind  him,  unless  he  knowingly  as- 


286  EAILEOADS,  WAREHOUSES, 

sented  to  such  restriction,  but  it  is  error  to  so  instruct,  where  the 
consignee  signs  the  contract.    Ib . 

2421.  A  condition  in  a  contract  for  the  transportation  of  goods 
forms  no  part  of  the  contract,  where  it  was  not  known  or  assented  to 
by  the  shipper.    Adams  Express  Co.  v.  King,  3  Bradw.  316. 

2422.  The  statute  prohibits  a  common  carrier  from  limiting  by 
contract,  its  liability  to  deliver  the  goods  safely  at  their  destination ; 
but  in  this  case,  if  the  carrier  was  guilty  of  no  negligence,  it  was  not 
liable  at  common  law,  and  the  contract  in  that  regard,  is  not  within 
the  statute  and  prohibited  thereby.    /.  &  St.  L.  Ry.  v.  Jurey,  8  B.  160. 

2423.  A  carrier  cannot  by  contract  relieve  himself  from  responsi- 
bility for  his  own  negligence  or  that  of  his  servants.    Neither  can  he 
limit  his  common  law  liability  to  safely  deliver  property  received  for 
transportation.     W.,  St.  L.  &  P.  Ry.  \.  Black,  11  Bradw.  465. 

2424.  A  carrier  is  not  restricted  from  providing  in  a  shipping  con- 
tract that  in  case  any  claim  for  damages  is  made,  notice  of  the  same 
shall  be  given  within  a  prescribed  time.    Such  a  provision  is  reason- 
able and  is  not  a  limitation  upon  the  common  law  duty  of  a  carrier  to 
safely  deliver  property  received  for  shipment.    Ib. 

2425.  Where  goods  are  received  by  a  common  carrier,  marked  for 
transportation  to  a  place  beyond  its  line,  and  the  bill  of  lading  lim- 
ited the  common  law  liability  of  the  carrier  to  safe  carriage  over  its 
own  line:    Held,  that  the  inhibition  contained  in  Ch.  114,  §  82,  E.  S. 
1874,  does  not  apply  to  a  case  where  the  carrier  is  under  no  obligation 
at  common  law  to  "undertake  to  carry  goods  beyond  its  own  line.    C. 
&  N.  W.  Ry.  v.  Church,  12  Bradw.  17. 

2426.  A  custom  that  a  carrier  shall  not  be  liable  for  injury  to,  or 
loss  or  destruction  of  live  stock  beyond  the  value  of  f  100,  is  against 
public  policy,  and  a  custom  which  will  excuse  a  carrier  from  acts  of 
negligence,  is  invalid.    C.,  R.  I.  &  P.  R.  R.  v.  Harmon,  12  Bradw.  54. 

2427.  Notice  to  shipper  of  a  rule  that  the  carrier  will  not  transport 
live  stock  unless  the  shipper  signs  a  special  contract  limiting  the  car- 
rier's liability  to  $100,  does  not  create  a  contract,  making  the  rule  bind- 
ing.   The  assent  of  the  shipper  must  appear  before  be  can  be  bound.  Ib. 

2428.  A  railway  company  has  a  right  to  exempt  itself  by  contract 
from  liability  for  loss  or  damage  to  goods  delivered  to  it  for  carriage, 
except  where  the  same  is  caused  by  negligence  of  its  own  servants. 
/.  C.  R.  R.  v.  Jonte,  13  Bradw.  424. 

2429.  The  contract  in  this  case  does  not  violate  the  statute  which 
prohibits  common  carriers  from  limiting  their  common  law  liability 
to  safely  deliver,  by  a  stipulation  in  the  receipt,  for  the  limitation  to 
the  liability  of  the  carrier  is  not  expressed  in  the  receipt  given  by  the 
carrier.    Statute  does  not  prohibit  contracts  limiting  liability  made 
independent  of  receipt.    I.  C.  R.  R.  v.  Jonte,  13  Bradw.  424. 

2429a.  Whether  a  shipper  knew  of  the  terms  and  conditions  of  a 
bill  of  lading  and  assented  thereto,  are  questions  of  fact  to  be  deter- 
mined by  the  jury  from  the  evidence.  L.  S.  &  M.  S.  Ry.  v.  Davis, 
16  Bradw.  425. 

2430.  In  attempting  to  prove  the  shipper's  knowledge  of  or  assent 
to  the  terms  of  the  bill  of  lading,  the  carrier  is  not  limited  to  evi- 
dence of  any  one  particular  fact,  but  may  prove  all  the  circumstances 
surrounding  the  transaction  which  have  any  legitimate  tendency  to 
establish  the  shipper's  knowledge  or  assent.    Ib. 

2431.  A  common  carrier  cannot  by  contract  stipulate  for  com- 
plete indemnity  against  his  gross  negligence:  as  to  the  right  to  stipu- 
late for  a  partial  exemption  from  his  full  liability  authorities  pro  and 
con  cited.    C.,  R.  I.  &  P.  R.  R.  v.  Harmon,  17  Bradw.  640. 


AND  EMINENT  DOMAIN.  287 

2432.  A  special  contract   providing  that    no  claim  for  loss   by 
delay  in  transportation  shall  be  payable  or  recoverable,  but  shall  be 
absolutely  barred,  unless  a  written  statement  of  it  shall  be  made  out 
and  sent  by  the  shipper  to  the  general  freight  agent  of  the  company 
within  five  days  after  such  loss  occurs,  is  valid  and  binding.    C.  &  A. 
R.  R.  v.  Simms,  18  Bradw.  68. 

2433.  A  clause  in  a  receipt  restricting  the  carrier's  liability  to  his 
own  lines  and  for  safe  delivery  to  next  carrier,  is  binding  on  the 
shipper  the  same  as  if  signed  by  him,  if  knowingly  assented  to  by 
him.    Fortier  v.  Penn.  Co.,  18  Bradw.  260. 

2434.  The  limitation  must  be  an  affirmative  one  and  the  burden  is 
on  the  company  to  show  it.    Fortier  v.  Penn  Co.,  18  Bradw.  260. 

2435.  A  common  carrier  can  limit  his  ordinary  liability  only  by  a 
special  contract,  and  the  acceptance  of  a  receipt  or  bill  of  lading  with 
printed  conditions,  or  notice  limiting  the  carrier's  liability  by  the 
owner  or  shipper  of  goods  without  dissent,  will  not  establish  such  a 
contract.     Western  Transit  Co.  v.  HosTting,  19  Bradw.  607. 

2436.  In  such  case,  it  is  necessary  to  show  that  the  shipper  knew 
of  and  assented  to  the  exemption,  and  such  assent  must  be  shown  by 
other  and  additional  evidence,  and  is  not  the  subject  of  presumption 
from  the  terms  of  the  receipt  alone.    Ib . 

2437.  The  lex  loce  governs  as  to  the  validity  and  construction  of 
the  contract  of  shipment,  but  in  the  absence  of  proof,  it  will  be  pre- 
sumed that  the  common  law  of  another  state  is  the  same  as  in  this 
state.    Fortier  v.  Penn.  Co.,  18  Bradw.  264;   Western  Transit  Co.  v. 
Hosking,  19  Bradw.  607. 

2438.  Carrier  may  only  by  special  contract  with  the  owner  or  ship- 
per, limit  his  common  law  liability.     York  Co.  v.  III.  C.  R.  R.,  3  Wall. 
107;  70  U.  S.  107;  same  case,  1  Biss.  877. 

2439.  May  by  special  contract  limit  his  liability  in  case  of  fire. 
Van  Sohaack  v.  Northern  Transp.  Co.,  3  Biss.  394. 

2440.  Statute  prohibiting  carriers  from  limiting  their  liability  does 
not  apply  to  limitation  of  amount  of  liability,  where  shipper  fails  to 
state  the  value.    Mather  v.  Am.  Express  Co.,  9  Biss.  293. 

2441.  Statute  does  not  prohibit  carrier  from  contracting  in  bill  of 
lading  for  benefit  of  insurance  in  case  of  loss.    Phoenix  Ins.  Co.  v. 
Erie  &  Western  Transp.  Co.,  10  Biss.  18. 

2442.  Railway  company  is  liable  as  a  common  carrier  for  loss  of  a 
car  of  another  carrier  while  such  car  is  being  hauled  by  railway  com- 
pany over  its  line.    P.  &  P.  U.  Ry.  v.  C.,  R.  I.  &  P.  Ry.,  109  111.  135. 

2443.  TO   FUENISH    AX,  SAW,    SLEDGE,  ETC.,  EOE  EACH  CAE. 

§  34.  That  every  railroad  corporation  shall  furnish  each  car 
used  for  the  transportation  of  passengers  with  one  woodman's 
ax,  one  hand-saw,  one  sledge  hammer  and  two  leather  buck- 
ets; said  articles  to  be  kept  in  good  repair,  ready  for  instant 
use,  and  in  some  convenient  place  in  such  car,  easy  of  access 
in  case  of  collision  or  other  accident.  [K.  S.,  p.  1019,  §  97; 
S.  &  C.,  p.  1948,  §  97;  Cothran,  p.  1160,  §  83.] 

2444.  FUENISH  COUPLINGS — PENALTY.     §  34|.  It  shall  be 
the  duty  of  all  railroad  corporations  operating  any  railroad 
in  this  state,  to  provide  such  of  their  passenger  cars  as  are 
used  in  trains  with  some  suitable   automatic  coupling,  or 
other  coupling  which  will  secure  personal  safety,  within  one 


288  EAILBOADS,  WAKEHOUSES, 

year  from  the  time  this  law  goes  into  effect,  and  any  company 
refusing  or  neglecting  to  provide  such  automatic  coupling,  or 
other  couplings  which  will  secure  personal  safety,  for  each 
passenger  car  so  used  in  trains,  shall  be  liable  to  a  fine  of  not 
less  than  25  nor  more  than  $50.  [R  S.,  p.  1019,  §  98;  S.  & 
C.,  p.  1948,  §  98;  Cothran,  p.  1160,  §  84] 

2445.  Company  liable  to  brakeman  for  an  injury  to  his  hand  caused 
by  defective  coupling  on  cars.    T.,  W.  &  W.  Ry.  v.  Fredericks,  71  111. 
294. 

2446.  Company  will  not  be  liable  for  an  injury  to  freight  conduc- 
tor received  in  consequence  of  the  coupling1  of  freight  car  suddenly 
getting  out  of  repair,  unless  its  attention  has  been  called  to  it,  or  it 
could  by  great  care  have  discovered  the  defect,  and  had  opportunity  to 
make  the  needed  repairs.    /.,  B.  &  W.  R.  R.  v.  Flanigan,  11  111.  365. 

2447.  Company  will  not  be  liable  to  an  employe  for  personal  injury 
received  while  coupling  cars  having  double  buffers,  simply  because  a 
higher  degree  of  care  is  required  in  using  them  than  in  those  differ- 
ently constructed.    Ib. 

2448.  Where  a  brakeman  in  uncoupling  a  combination  car  to  be 
left  on  a  switch,  which  has  a  railing,  instead  of  remaining  on  such  car 
as  it  was  his  duty,  gets  upon  a  flat  car  next  to  it,  and  is  injured  in  con- 
sequence of  a  jerk  in  starting,  his  own  negligence  will  bar  a  recovery 
by  him.    C.  &  A.  R.  R.  v.  Rush,  84  111.  570. 

2449.  Injury  to  brakeman  while  coupling,  from  other  defects.    C. 
&  E.  III.  R.  R.  v.  Rung,  104  111.  641. 

2450.  FLAGMEN — SHELTEE.  §35.  In  all  cases  where  the 
public  authorities  having  charge  of  any  street  over  which 
there  shall  be  a  railroad  crossing,  shall  notify  any  agent  of 
the  corporation  owning,  using  or  operating  such  railroad,  that 
a  flagman  is  necessary  at  such  crossing,  it  shall  be  the  duty 
of  such  railroad  company,  within  sixty  days  thereafter,  to 
place  and  retain  a  flagman  at  such  crossing,  who  shall  per- 
form the  duties  usually  required  of  flagmen;  and  such  flag- 
man is  hereby  empowered  to  stop  any  and  all  persons  from 
crossing  a  railroad  track  when,  in  his  opinion,  there  is  danger 
from  approaching  trains  or  locomotive  engines ;  and  any  rail- 
road company  refusing  or  neglecting  to  place  flagmen,  as 
required  by  this  section,  shall  be  liable  to  a  fine  of  $100  per 
day  for  every  day  they  shall  neglect  or  refuse  to  do  so;  and 
it  is  hereby  made  the  duty  of  such  public  authorities  having 
charge  of  such  street,  to  enforce  the  payment  of  such  fine,  by 
suit,  in  the  name  of  the  town  or  municipal  corporation  wherein 
such  crossing  shall  be  situate,  before  any  court  of  competent 
jurisdiction  in  the  county,  and  the  prosecuting  attorney  shall 
attend  to  the  prosecution  of  all  suits  as  directed  by  said  public 
authorities.  All  the  moneys  collected  under  the  provisions 
of  this  act  shall  be  paid  into  the  treasury  of  the  town  or  mu- 
nicipal corporation  in  whose  name  such  suits  shall  have  been 
brought:  Provided,  that  when  any  railroad  company  is 
required  to  keep  a  flagman  at  a  crossing,  it  shall  have  the 


AND  EMINENT  DOMAIN.  289 

right  to  erect  and  maintain  in  the  highway  or  street  crossed 
a  suitable  house  for  the  shelter  of  such  flagman,  the  same  to 
be  so  located  as  to  create  the  least  obstruction  to  the  use  of 
such  street  or  highway,  and  afford  the  best  view  of  the  rail- 
road track  in  each  direction  from  such  crossing.  [L.  1869, 
p.  314,  §  8;  E.  S.  1887,  p.  1019,  §  99;  S.  &  C.,  p.  1948,  §  99; 
Cothran,  p.  1160,  §  85.  See  ante,  145,  146.] 

2451.  Company  liable  to  one  injured  by  neglect  to  have  a  person 
stationed  on  rear  end  of  cars  pushed  through  a  city,  or  on  ground  to 
give  warning.    /.  C.R.R.  v.  Ebert,  74  111.  399. 

2452.  Company  not  liable  for  an  injury  to  a  switchman  for  not 
providing  rules  whereby  a  watchman  should  have  been  kept  on  rear 
end  of  train  that  produced  the  injury,  a  watch  or  look-out  being  kept 
from  the  engine.    C,  &  N.  W.  Ry.  v.  Donahue,  75  111.  106. 

2453.  Absence  of  watchman  at  a  much  frequented  street  crossing 
whose  duty  it  was  to  warn  persons  crossing  the  tracks  of  danger, 
makes  the  company  liable  for  an  injury  caused  thereby.    St.  L.,  F.  & 
T.  H.  R.  R.  v.  Dunn,  78  111.  197. 

2454.  Duty  of  railway  companies  to  give  warning  at  street  cross- 
ing.   P.  &.  P.  U.  Ry.  v.  Clayberg,  107  111.  644;  C..  R.  /.  &  P.  R.  R.  v. 
Eininger,  114  111.  79;  C.&  A.R.R.  v.  Qretzner,  46  111.  74;  C.  &  A.  R.  R. 
v.  McLaughUn,  47  111.  265. 

2455.  PENALTIES.  §  36.  If  any  railroad  corporation,  or 
any  of  its  agents,  servants  or  employes  shall  violate  any  of 
the  provisions  of  this  act,  such  corporation,  agent,  servant  or 
employe  shall,  severally,  unless  otherwise  herein  provided, 
be  liable  to  a  fine  of  not  less  than  $10  nor  more  than  $200,  to 
be  recovered  in  an  action  of  debt,  in  the  name  of  the  people 
of  the  state  of  Illinois,  for  the  use  of  any  person  aggrieved, 
before  any  court  of  competent  jurisdiction.  [E.  S.,  p.  1019, 
§  100;  8.  &  C.,  p.  1948,  §  100;  Cothran,  p.  1160,  §  86.] 

2456.  Under  prior  statute  giving  a  special  remedy  for  failure  to 
ring  a  bell  or  whistle  before  reaching  a  public  road  crossing,  and  also 
a  general  remedy  for  any  failure  to  comply  with  act,  it  was  held  that 
the  action  for  the  penalty  might  be  prosecuted  in  either  form  of 
action.  T.,  P.  &  W.  Ry.  r.  Foster,  43  111.  480. 

2457.  CORPORATION  DEFINED.  §  37.  The  word  "cor- 
poration," as  used  in  this  act,  shall  be  construed  to  include 
all  companies,  lessees,  contractors,  persons,  or  association  of 
persons,  owning  operating  or  using  any  railroads  in  this 
state.  [E.  S.  1887,  p.  1019,  §  101;  S.  &  C.,  p.  1949,  §  101; 
Cothran,  p.  1161,  §  87.] 

2458.  CONTRACTORS.    Corporation  liable  for  the  acts  of  its  con- 
tractors exercising  its  corporate  powers .     Lesher  v.  Wab.  Nav.  Co., 
14  111.  85;  Hinde  v.  Wab.  Nav.  Co.,  15  111.  72;  C.,  St.  P.  &  F.  D.  L.R.  R. 
v.  McCarthy,  20  111.  385. 

2459.  Railway  company  cannot  release  itself  from  liability  by  leas- 
ing its  road.    O.  &  M.  R.  R.  v.  Dunbar,  20  111.  623. 

2460.  Liable  for  the  torts  and  trespasses  of  its  lessees,  and  for  the 
torts  and  acts  of  its  contractors.    C.  &  R.  I.  R.  R.  v.  Whipvle,.22  111. 
105. 

-20 


290  RAILROADS,  WAREHOUSES, 

2461.  Where  a  railway  company  allows  another  company  to  use  its 
unfenced  road,  and  the  latter  kills  stock  upon  the  track  each  will  be 
liable.    /.  C.  R.  R.  v.  Kanouse,  39  111.  272. 

2462.  Where  two  companies  are  using  the  same  line  of  road,  one 
company  being  the  owner  and  the  other  using  the  road  by  its  permis- 
sion, the  company  owning  the  track  is  liable  i'or  damages  done  by 
reason  of  an  unfenced  track,  by  the  trains  of  the  other  company,  the 
same  as  if  done  by  its  own  trains,  and  the  other  also  will  be  liable. 
T.,  P.  &  W.  Ry.  v'.  Rumbold,  40  111.  143. 

2463.  As  to  liability  of  private  owner  for  negligence  of  his  con- 
tractor see  Schwartz  v.  GUlmore,  45  111.  455;  Scammon  v.  Chicago,  25 
111.  424,  438;  Pfau  v.  Williamson,  63  111.  16;  P.S.  Loan  and  Trust  Co. 
v.Doig,  70111.  52;  Hale  v.  Johnson,  80  111.  185;  Kipperly  v.  Ramsden, 
83  111.  354. 

2464.  Lessor  company  liable  for  injuries  to  its  passengers  caused 
by  the  negligence  of  another  company  which  it  allows  to  use  its  road. 
/.  C.R.  R.  v.  Barron,  5  Wall.  90;  1  Biss.  412. 

2465.  The  owner  of  posts  taken  and  used  by  railway  contractors 
in  fencing  the  company's  track,  may  maintain  trover  against  the 
company  for  the  value  of  the  posts.    St.  L.,  F.  &  T.  H.  R.  R.  v.  Kaul- 
brumer,  59  111.  152. 

2466.  Where  the  wrongful  act  is  done  by  contractors  or  lessees  of 
a  chartered  company  in  pursuance  of  the  special  powers  and  privi- 
leges conferred  upon  the  company  by  its  charter,  and  but  for  such 
charter  they  would  have  no  right  to  prosecute  the  particular  business, 
such  contractors  or  lessees,  as  to  third  parties  who  may  be  injured  by 
their  acts  will  be  regarded  as  the  servants  of  the  company  acting  under 
its  direction,  and  the  company  will  be  held  liable  for  any  abuse  of  such 
of  its  privileges  by  its  contractors  or  lessees.    West  v.  8t.  L.,  V.&  T. 
H.  R.  R.,  63  111.  545. 

2467.  Company  not  liable  to  a  servant  of  contractors  employed  to 
build  a  freight  house,  who  was  poisoned  by  breathing  a  noxious 
exhalation  from  an  ingredient  in  the  paint.    J6. 

2468.  Where  the  contractors  of  a  railway  company  are  guilty  of 
trespasses  upon  the  land  of  another  in  constructing  the  road,  the  com- 
pany will  be  liable  for  their  acts;   and  if  the  injury  is  wanton  or  will- 
ful the  company  mav  be  required  to  respond  in  exemplary  damages. 
R.,  R.  L  &  St.  L.  R.  R.  v.  Wells,  66  111.  321. 

2469.  Where  lease  is  unauthorized  by  law,  the  lessees  will  only  be 
regarded  as  the  servants  of  the  company  owning  the  road,  and  the 
latter  will  not  be  released  from  any  of  its  contracts  and  obligations. 
0.,  0.  &  F.  R.  V.  R.  R.  v.  Slack,  79  111.  262. 

2470.  A  railway  company  which  fails  to  fence  its  track  is  liable 
for  any  damage  resulting  from  such  failure,  whether  caused  by  its 
own  trains,  or  those  of  another  company  using  its  track.  Either  com- 
pany is  liable.    E.  St.  L.  &  C.  Ry.  v.  Gerber,  82  111,  632. 

2471.  A  railway  company  holding  the  franchise  and  exclusive 
right  to  operate  a  railroad,  must  so  use  it  as  not  to  endanger  passen- 
gers or  property,  whether  the  use  be  by  themselves,  or  others  they 
may  permit  to  use  the  road.    The  company  owning  the  road  and 
franchise  is  liable  for  an  injury  to  a  passenger  through  the  negligence 
of  its  lessees,  or  of  another  company  using  the  road  by  its  permis- 
sion.   P.  &  R.  I.  R.  R.  v.  Lane,  83  111.  448. 

2472.  If  a  switch  on  a  railroad  is  not  properly  locked,  or  otherwise 
secured,  whether  by  the  neglect  of  the  employes  of  the  company  own- 
ing the  same,  or  its  lessees,  or  if  the  switch  is  not  properly  constructed 
and  maintained,  and  injury  is  thereby  occasioned  to  a  passenger  on  a 


AND  EMINENT  DOMAIN.  291 

train  operated  by  the  lessees,  the  company  owning  the  road  and  fran- 
chise will  be  liable.    Ib. 

2473.  Company  is  liable  for  the  trespass  of  hands  employed  by  its 
contractors  while  engaged  in  the  construction  of  its  road,  and  where 
the  fact  appears  that  the  trespass  consists  in  entering  upon  the  plain- 
tiff's land  and  digging  up  the  soil,  and  making  embankments,  it  is 
not  error  to  refuse  evidence  that  the  company  had  nothing  to  do  in 
employing  the  hands  doing  the  work,  but  that  they  were  employed 
and  paid  by  the  contractors.    C.  &  St.  L .  JR.  R.  v.  Woosley,  85  111.  370. 

2474.  The  lessee  of  a  railroad,  who  by  contract,  permits  another 
company  to  use  the  road,  is  liable  for  the  negligent  acts  of  the  latter 
company.    P.,  C.  &  St.  L.  Ry.  v.  Campbell,  86  111,  443. 

2475.  By  accepting  and  acting  under  its  charter,  the  company  be- 
comes a  common  carrier  and  con  not  exonerate  itself  from  its  duty 
and  liability  by  contract  with  others,  or  otherwise,  unless  released  by 
the  legislature.     W.,  St.  L.  &  P.  Ry.  v.  Peyton,  106  111.  534. 

2476.  Where  one  company  acquires  the  right  to  run  its  trains  over 
a  portion  of  another  company's  road  by  contract,  in  which  it  is  agreed 
that  the  leased  road  shall  be  under  the  control  and  direction  of  the 
yard-master  or  other  servant  of  the  lessor,  the  yard-master  of  the 
lessor  will  at  such  place  and  for  the  time  being,  be  the  servant  of  the 
lessee,  which  will  be  liable  for  any  injury  caused  by  his  negligence. 
Ib. 

2477.  Railway  company  is  held  to  the  same  care  for  the  safety  of 
all  persons  while  exercising  its  franchises,  whether  on  its  own  road  or 
that  of  another  company.     If  it  operates  its  trains  over  the  road 
of  another  by  contract  or  lease,  it  must  see  and  know  that  the  track 
is  in  a  good  and  safe  condition,  not  only  for  the  safety  of  its  passen- 
gers, but  also  for  the  safety  of  persons  rightfully  near  to  the  track 
and  liable  to  injury  by  its  being  used  when  in  an  unsafe  condi- 
tion.   Ib. 

2478.  Where  a  railway  company  procures,  by  contract  with  an- 
other company,  the  right  of  running  its  trains  into  and  out  of  a  depot 
over  the  track  of  the  latter,  it  thereby  makes  that  portion  of  the  track 
so  used,  its  own,  in  so  far  that  it  will  be  responsible  for  all  injuries 
resulting  from  negligence  in  keeping  or  permitting  it  to  be  in  an  un- 
safe condition.    Ib. 

2479.  Where  the  trains  of  a  railway  corporation  are  made  up  by 
the  employes  of  another  company  and  on  the  track  of  the  latter,  and 
cars  used  to  make  up  the  same,  belong  to  other  companies,  if  the  use 
of  the  cars  and  tracks  and  labor  in  making  up  such  trains,  is  to  enable 
such  first  named  corporation  to  exercise  its  franchise,  &c.,  such  cars, 
tracks  and  servants,  so  far  as  the  rights  of  its  passengers  who  may 
receive  an  injury  are  concerned,  must  be  regarded  as  the  cars,  tracks 
and  servants  of  the  company  so  using  the  same.    H.  &  St.  J.  R.R.\. 
Martin,  111  111.  219.    See,  also,  Union  Ry.  &  Transit  Co.  v.  Kattaher, 
114  111.  325. 

2480.  Where  a  railway  company  operating  its  road  in  its  own 
name,  contracts  with  another  company  to  make  up  its  train  in  the 
depot  of  the  latter,  the  former  company  is  liable  for  an  injury  to  a 
passenger  occurring  on  its  train  while  being  made  up  by  the  servants 
of  the  latter,  and  it  makes  no  difference  that  the  servants  were  em- 
ployed and  paid  by  the  latter  road.    H.  &  St.  J.  R.  R.  v.  Martin,  11 
Bradw.  386. 

2481.  Liable  for  defect  in  cars  of  foreign  corporation  which  jt  uses. 
C.  &  A.  R.  R.  v.  Sragonier,  11  Bradw.  516. 

2482.  Railway  corporations  are  liable  for  injuries  by  the  wrongful 


292  EAILBOADS,  WAREHOUSES, 

acts  of  any  lessee,  contractor  or  other  person,  done  in  the  exercise,  by 
its  permission,  of  any  of  its  franchises;  but  this. liability  is  limited  to 
"wrongs  done  by  them  while  in  the  performance  of  acts  which  they 
would  have  had  no  right  to  perform  except  under  the  charter  of  the 
company"  sought  to  be  made  liable.  St.  L . ,  A.  &  T.  H.  R.  R.  v.  Balsley. 
18  Bradw.  79. 

2483.  STREET  RAILROADS.     §  38.  This  act  shall  not  apply 
to  horse  cars  or  street  railroads.     [§  39,  repeal,  omitted.     See 
"Statutes,"  ch.  131,  §  5.     E.  S.  1887,  p.  1019,  §102;  S.  &  C., 
p.  1949,  §§  102  and  103;  Cothran,  p.  1161,  §  88.] 

An  act  relating  to  fires  caused  by  locomotives.  Approved  and  in  force  March  29, 
1869. 

2484.  FIRES  BY  LOCOMOTIVES.     §  1.  Be  it  enacted  by  the 
people  of  the  state  of  Illinois,  represented  in  the  general 
assembly,  That  in  all  actions  against  any  person  or  incorpo- 
rated company  for  the  recovery  of  damages  on  account  of 
any  injury  to  any  property,  whether  real  or  personal,  occa- 
sioned by  fire  communicated  by  any  locomotive  engine  while 
upon  or  passing  along  any  railroad  in  this  state,  the  fact  that 
such  fire  was  so  communicated  shall  be  taken  as  full  prima 
facie  evidence  to  charge  with  negligence  the  corporation,  or 
person  or  persons  who  shall,  at  the  time  of  such  injury  by 
fire,  be  in  the  use  and  occupation  of  such  railroad,  either  as 
owners,  lessees  or  mortgagees,  and  also  those  who  shall  at 
such  time  have  the  care  and  management  of  such  engine; 
and  it  shall  not,  in  any  case,  be  considered  as  negligence  on 
the  part  of  the  owner  or  occupant  of  the  property  injured, 
that  he  has  used  the  same  in  the  manner,  or  permitted  the 
same  to  be  used  or  remain  in  the  condition  it  would  have 
been  used  or  remained  had  no  railroad  passed  through  or 
near  the  property  so  injured,  except  in  cases  of  injury  to 
personal  property  which  shall  bo  at  the  time  upon  the  prop- 
erty occupied  by  such  railroad.     This  act  shall  not  apply  to 
injuries  already  committed. 

2484a.  ACT  TAKES  EFFECT.  §  2.  This  act  shall  take  effect 
and  be  in  force  from  and  after  its  passage.  [  L.  1869,  p.  312. 
K.  S.  1887,  p.  1020,  §§  103,  104;  S.  &  C.,  p.  1949,  §§  104,  105; 
Cothran,  p.  1161,  §§  89,  90.  See  ante,  1800-1806.  ] 

2485.  Negligence  will  be  implied  from  the  escape  of  fire  from  a 
locomotive,  and  the  burden  of  proof  lies  on  railway  company  to  show 
that  all  the  most  approved  mechanical  appliances  were  used  on  the 
engine  to  prevent  the  escape  of  fire.    Bass  v.  C.,  B.  &  Q.  R.  R.,  28  111.  9. 

248ft.  In  an  action  against  a  railroad  company  for  an  injury  to 
property  by  fire  escaping  from  one  of  its  passing  locomotives,  the  bur- 
den of  proving  that  the  engine  was  properly  guarded  to  prevent  the 
escape  of  sparks,  is  upon  the  company.  It  is  bound  to  use  all  possible 
diligence  to  prevent  such  escape.  St.  L.,  A.  &  T.  H.  R.  R.  v.  Mont- 
gomery, 39  111.  335. 

2487.  In  an  action  against  a  railway  company  to  recover  for  the 
burning  of  a  warehouse  and  goods  therein  by  the  escape  of  sparks 


AND  EMINENT  DOMAIN.  293 

from  a  locomotive,  the  employment  of  an  unnecessary  amount  of  steam 
by  which  an  undue  quantity  of  sparks  are  emitted,  constitutes  negli- 
gence. Great  Western  R.  R.  v.  Haworth,  39  111.  346. 

2488.  If  it  is  true  that  sparks  are  emitted  from  a  locomotive  in 
proportion  to  the  amount  of  steam  applied,  it  will  be  negligence  while 
passing  near  buildings,  to  apply  to  the  engine  an  unnecessary  amount 
of  steam.    Ib. 

2489.  CONTRIBUTORY.    It  is  for  the  jury  to  determine  from  the 
evidence  whether  the  injury  resulted  from  an  unnecessary  exposure  of 
the  building  by  the  owner,  or  by  an  undue  amount  of  sparks  emitted 
from  the  locomotive.    Id. 

2490.  Where  the  owner  of  a  building  exposes  it  to  such  a  degree  of 
danger  that  it  will  most  probably  be  destroyed,  he  cannot  recover, 
unless  the  party  causing  the  injury  is  shown  to  have  been  guilty  of 
greater  negligence;  and  such  owner,  when  he  permits  the  windows  to 
remain  open  and  unglazed,  and  other  openings  in  the  building  to  go 
unrepaired,  so  that  fire  emitted  from  a  passing  engine  is  liable  to  be 
blown  into  it,  is  guilty  of  negligence,  and  cannot  recover  for  loss, 
unless  greater  negligence  on  the  part  of  the  company  is  shown.    Ib. 

2491.  Railway  companies  should  use  all  the  appliances  of  science, 
and  the  highest  degree  of  diligence  to  prevent  the  destruction  of  prop- 
erty contiguous  to  their  Tines  by  means  of  lire  escaping  from  their 
passing  trains.    St.  L.,  A .  &  T.  H.  R .  R .  v.  Qilham,  39  111.  455. 

2492.  By  failing  to  provide  the  most  approved  appliances  for 
arresting  sparks  from  their  engines,  by  running  poor  engines,  or  those 
out  of  order,  a  railroad  company  becomes  liable  for  all  casualties  occa- 
sioned thereby.    J.  C.  R.  R.  v.  McClelland,  42  111.  355.     - 

2493.  And  an  engine  which  throws  sparks  into  a  meadow  100  feet 
from  the  track  of  the  road,  is  not  provided  with  proper  appliances  for 
arresting  its  own  sparks;  and  evidence  of  such  fact  is  properly  ad- 
mitted to  show  the  character  of  the  engines  in  use  on  a  road  at  a 
particular  time.    Ib. 

2494.  It  is  sufficient  if  the  proof  sustains  substantially  any  one  of 
the  counts,  and  the  plaintiff  is  not  confined  to  the  proof  of  the  precise 
place  where  the  fire  originated.    It  is  immaterial  whether  it  com- 
menced on  the  right  of  way  of  defendant  or  not.    76. 

2495.  Where  it  appears  that  fire  has  escaped  from  a  railroad  loco- 
motive, it  will  be  presumed  that  the  company  were  not  employing  the 
best  known  contrivances  to  retain  the  fire,  and  it  will,  to  rebut  the 
presumption,  devolve  upon  the  company  to  show  that  such  machinery 
was  thus  employed  and  in  repair.    The  design  of  the  statute  is  that 
railway  companies  shall  use  all  reasonable  precautions  to  prevent  the 
escape  of  fire,  and  they  will  be  held  to  the  discharge  of  that  duty.    /. 
C.  R.  R.  v.  Mills,  42  111.  407. 

2496.  It  is  not  a  conclusion  of  law  that  a  railway  company  is  guilty 
of  negligence  by  permitting  grass  and  weeds  to  remain  on  its  right  of 
way,  and  become  dry  and  combustible,  which  ignite  and  communicate 
to  adjoining  lands.    It  is  a  question  of  fact  to  be  determined  by  the 
jury  in  view  of  the  extent  to  which  grass  and  weeds  have  been  allowed 
to  accumulate  in  the  particular  locality,  the  season  of  the  year  and  all 
other  circumstances  affecting  the  liability  of  fire  to  communicate.  Ib. 

2497.  Same  care  to  keep  right  of  way  clear  of  combustible  matter 
as  of  an  individual  under  same  danger.    Ib. 

2498.  The  fact  that  fire  has  escaped  from  a  locomotive  by  which 
plaintiff's  property  is  burned,  is  not  conclusive  evidence  of. the  com- 
pany's liability.    It  is  not  an  insurer  against  the  escape  of  fire  from 
its  engines.    I.  C.  R.  R.  v.  Mills,  42  111.  407. 


294  RAILROADS,  WAREHOUSES, 

2409.  It  is  not  negligence  per  se  for  a  railroad  to  suffer  grass  and 
weeds  to  accumulate  on  its  right  of  way;  the  fact,  however,  is  proper 
evidence  for  the  jury,  who  may  find  negligence  from  it.  O.  &  M.  R.  R. 
v.  Shanefelt,  47  111.  497. 

2500.  If  owner  of  contiguous  lands  suffer  weeds  and  grass  to  ac- 
cumalate  thereon,  so  that  a  fire  commencing  on  the  right  of  way  is 
communicated  to  his  premises,  his  negligence  will  be  held  as  con- 
tributing to  his  loss,  and  he  cannot  recover  unless  the  negligence  of 
the  company  is  greater  than  his.    Ib. 

2501.  A  railway  company  is  held  to  the  same,  but  no  higher  duty 
to  keep  its  right  of  way  free  from  grass  or  weeds,  than  are  the  adjoin- 
ing land-owners  and  proprietors,  to  keep  the  adjoining  lands  free 
from  grass  and  weeds.    Rule  in  Bass  v.  C.,  B.  &  Q.  R.  R.,  28  111.  9,  was 
not  concurred  in  by  a  majority  of  the  court.    /.  C.  R.  R.  v.  Frazier, 
47  111.  605. 

2502.  The  question  of  comparative  negligence  on  the  part  of  a 
plaintiff  and  the  railway  company  in  respect  to  the  accumulation  of 
combustible  material,  are  questions  of  fact  and  properly  left  to  a 
jury.    /.  C.  R.  R.  v.  Nunn,  51  111.  78. 

2503.  Railway  companies  are  required  to  provide  and  keep  con- 
stantly in  use,  and  in  proper  repair  the  most  approved  machinery  to 
prevent  the  escape  of  fire  from  their  engines,  to  the  injury  of  property 
along  their  lines.    If  notwithstanding  the  use  of  such  machinery, 
sparks  escape  and  a  fire  is  thereby  communicated  to  buildings,  the 
company  will  not  be  deemed  guilty  of  negligence,  unless  the  damage 
results  from  the  neglect  of  some  other  duty.    T.,  P.  &  W.  Ry.  v.  Pin- 
dar, 53  111.  447. 

2504.  But  even  with  the  use  of  the  best  appliances  to  prevent  the 
escape  of  fire,  if  through  the  overloading  of  the  engine,  the  escape  of 
fire  and  sparks  is  produced  to  a  dangerous  extent,  the  company  will 
be  deemed  guilty  of  gross  negligence.    Ib. 

2505.  Where  fire  is  communicated  to  a  building  through  the  negli- 
gence of  a  railway  company,  the  owner  cannot  recover  for  the  loss  of 
such  portion  of  the  property  as  he  could,  easily  and  without  danger, 
have  saved  from  destruction.    T.,  P.  &  W.  Ry.  v.  Pindar,  53  111.  447. 

2506.  In  this  case  it  was  claimed  that  a  large  sum  of  money  was 
burned  in  a  house  to  which  fire  had  been  communicated  by  the  alleged 
negligence  of  a  railway  company.     The  money  could  have  been  se- 
cured with  but  slight  effort  and  without  danger  to  the  owner:  Held, 
that  the  company  was  not  liable  for  the  loss  of  the  money  by  reason 
of  the  neglect  of  the  owner  to  save  the  same.    76. 

2507.  Whether  or  not  the  injury  is  not  too  remote  is  a  question  of 
fact  for  the  jury  under  instructions.    Ib.    Fent  v.  T.,  P.  &  W.  Ry.,  59 
111.  349. 

2508.  Where  fire  is  ignited  on  the  right  of  way  of  a  railroad  com- 
pany by  reason  of  the  accumulation  of  dry  grass  and  weeds  thereon, 
and  communicated  to  the  adjoining  fields  by  the  negligence  of  the 
owner  in  not  keeping  them  free  from  combustible  material,  the  owner 
cannot  recover  for  the  injury,  unless  the  negligence  of  the  company  is 
greater  than  his  own.    C.  &  N.W.  Ry.  v.  Simonson,  54  111.  504. 

2509.  It  is  erroneous  in  the  instructions  to  base  the  plaintiff's 
right  of  recovery  wholly  on  the  question  of  the  negligence  of  the  com- 
pany, ignoring  the  doctrine  of  contributory  negligence  on  the  part  of 
the  plaintiff.     Where  the  adjoining  land  is  wood  laud,  that  fact  should 
be  considered  by  the  court  in  the  instructions,  as  abating  the  degree 
of  diligence  required  of  the  land-owner.    Ib. 

2510.  Under  the  act  of  1869  the  mere  proof  of  the  fact  that  the  fire 


AND  EMINENT  DOMAIN.  295 

was  caused  by  sparks  from  the  engine,  constitutes  prima  fade  evi- 
dence of  negligence  on  the  part  of  the  company,  and  the  burden  of 
proof  rests  upon  it  to  rebut  this  presumption.  C.  &  N.  W,  By.  v.  Mo- 
Cahill,  56  111.  28. 

2511.  Proof  of  the  fact  that  the  engine  threw  out  an  unusual  quan- 
tity of  fire  was  held  sufficient  to  overcome  any  direct  evidence  given 
that  it  was  in  good  order,  or  if  in  good  order,  that  it  was  skillfully 
managed  by  the  engineer.    Ib. 

2512.  If  fire  is  communicated  from  a  railway  locomotive  to  the 
house  of  A.  and  from  that  to  the  house  of  B.,  it  is  not  a  conclusion  of 
law  that  the  fire  from  the  locomotive  is  the  remote  and  not  the  proxi- 
mate cause  of  the  injury  to  B.,  but  that  is  a  question  of  fact  for  the 
jury.    Pent  v.  T.,  P.  &  W.  Ry.,  59  111.  349. 

2518.  Where  loss  has  been  caused  by  an  act,  and  it  was  under  the 
circumstances  a  natural  consequence  which  any  reasonable  person 
could  have  anticipated,  then  the  act  is  the  proximate  cause.  Ib. 

2514.  Experience  having  shown  that  railway  companies  by  the  use 
of  certain  mechanical  contrivances  can  prevent  the  emission  of  fire 
sparks  from  locomotive  engines,  in  such  quantities  at  least,  as  not  to 
be  at  all  dangerous  to  property  in  the  immediate  vicinity,  they  must 
in  every  instance,  be  held  to  a  strict  performance  of  their  duties  in 
that  regard.    C,  &  A.  R.R.  v.  Quaintance,  58  111.  389. 

2515.  If  such  companies  use  all  proper  and  reasonable  precaution 
to  prevent  the  escape  of  fire  from  their  engines  by  the  application  of 
the  best  and  most  approved  mechanical  appliances  for  that  purpose, 
and  keep  the  same  constantly  in  good  repair  while  in  use,  and  care- 
fully and  skillfully  managed  by  competent  and  prudent  engineers,  and 
nevertheless  fire  results,  they  will  not  be  liable  for  the  damage .    Ib. 

2516.  The  act  of  1869  makes  the  fact  of  injury  from  the  escape  of 
fire  from  the  engine  full  prima  facie  evidence  of  negligence  on  the 
part  of  the  company,  and  throws  the  burden  of  proof  on  the  company 
to  show  by  affirmative  evidence,  that  the  engine  at  the  time  was 
equipped  with  the  necessary  and  most  effective  appliances  to  prevent 
the  escape  of  fire,  and  that  the  engine  was  in  good  repair,  and  was 
properly,  carefully  and  skillfully  handled  by  a  competent  engineer.  Ib. 

2517.  It  is  not  enough  to  rebut  this  prima  facie  case  to  show  that 
the  engine  was  originally  constructed  with  the  best  and  most  approved 
inventions  to  prevent  the  escape  of  fire .     The  law  requires  a  constant 
and  vigilant  watch  to  see  that  the  engines  are  kept  in  proper  repair, 
so  as  not  to  be  dangerous,  &c.    Ib. 

2518.  It  is  negligence  to  use  wood  in  a  coal  burning  engine  while 
running,  for  the  reason  that  the  meshes  of  the  iron  netting  used  to  pre- 
vent the  escape  of  fire  sparks  are  made  much  larger  when  coal  only 
is  used  for  fuel,  and  the  fine  sparks  from  wood  are  much  more  dan- 
gerous, because  they  retain  the  fire  for  a  much  greater  length  of  time. 
To  use  wood  in  such  an  engine  in  a  dry  time  with  a  high  wind  pre- 
vailing is  great  carelessness  and  recklessness.  C.  &  A.  R.  R.  v.  Quain- 
tance, 58  111.  389. 

2519.  Evidence  tending  to  prove  the  safe  condition  of  the  engine 
admissible.    Ib. 

2520.  Where  a  railway  company  suffers  a  heavy  growth  of  dry 
grass  to  remain  on  its  right  of  way  through  plaintiff's  premises,  and 
fire  is  communicated  from  the  locomotive  of  a  freight  train,  while 
laboring  to  ascend  a  heavy  grade,  to  the  grass  and  weeds  in  the  right 
of  way,  and  from  thence  to  the  fence  and  grass  of  the  plaintiff,  which 
are  destroyed,  the  company  will  be  liable  for  the  loss.    R.,  R.  I.  &  St. 
L.  R.  R.  v.  Rogers,  62  111.  346. 


296  KAILROADS,  WAREHOUSES, 

2521.  Where  fire  is  communicated  from  a  locomotive  engine  of  a 
railway  company  and  thereby  destroys  the  property  of  another,  the 
presumption  of  negligence  on  the  part  of  those  having  the  care  and 
management  of  the  engine,  created  by  statute,  will  not  be  sufficiently 
rebutted  by  proof,  that  the  engine  was  at  the  time  of  the  injury,  pro- 
vided with  the  best  mechanical  contrivances  to  prevent  the  escape  of 
sparks,  and  that  they  were  in  good  order.    It  should  be  further  shown 
that  the  engine  was  properly  managed.    C.  &  A.  R.  R,  v.  Clampit,  63 
111.  95. 

2522.  Permitting  dry  grass  and  weeds  to  accumulate  on  right  of 
way  whereby  fire  is  communicated  to  plaintiff's  premises,  is  negli- 
gence.   /.  C.  R.  R.  v.  Frazier,  64  111.  28. 

2523.  The  law  holds  railway  companies  in  the  use  of  steam  as  a 
motive  power,  to  a  very  high  degree  of  care  and  skill  in  the  use  of  the 
most  effective  appliances  to  prevent  the  emission  of  fire  sparks  and  in 
the  employment  and  retention  of  servants  in  charge  of  them,  so  as  to 
prevent  loss  to  property.    T.,  W.  &  W.  Ry.  v.  Larmon,  67  111.  68. 

2524.  Railway  companies  are  not  insurers  against  loss  by  fire  from 
their  engines.    If  they  use  the  highest  degree  of  care  and  skill  to  pre- 
vent such  injury,  any  loss  occurring  must  fall  upon  the  owner.    ^., 
W.  &  W.  Ry.  v.  Larmon,  67  111.  68. 

2525.  It  is  error  to  instruct  that  the  destruction  of  property  by  the 
escape  of  fire  from  an  engine  is  of  itself,  evidence  of  negligence  on  the 
part  of  the  defendant.    The  statute  makes  such  fact,  only  primafatie 
evidence  of  negligence.    Ib. 

2526.  PLEADING — declaration.    An  averment  in  a  declaration  that 
it  was  the  duty  of  the  defendant  to  keep  its  right  of  way  free  from  dry 
grass  and  weeds,  and  to  so  construct  and  operate  its  locomotives,  as  to 
prevent  the  escape  of  fire  to  the  adjoining  property,  &c.,  is  substanti- 
ally an  averment,  that  it  was  the  duty  of  the  company  to  provide  its 
locomotives  with  the  best  appliances  to  prevent  the  escape  of  fire,  and 
to  so  use  them  that  it  would  not  be  liable  to  escape;  and  the  perform- 
ance of  this  duty  is  sufficiently  negatived  by  an  averment  that  the 
engine  was  so  negligently  used,  that  the  fire  did,  by  reason  of  such  neg- 
ligence, escape  and  produce  the  injury  complained  of.    T.,  W.  &  W. 
Ry.  v.  Corn,  71  111.  493. 

2527.  Company  not  required  to  provide  and  use  the  best  known 
appliances  that  mechanical  skill  and  ingenuity  have  been  able  to 
devise  and  construct  to  prevent  the  escape  of  sparks  from  its  locomo- 
tives, without  reference  to  whether  the  company  could  by  any  degree 
of  effort,  know  of  such  inventions  or  not,  or  whether  they  have  been 
tested  and  proved  to  be  the  best.    Ib. 

2528.  It  is  not  bound  to  purchase  the  patent  for  every  invention 
claimed  to  be  an  improvement  on  such  machinery  and  test  it;  but 
when  such  an  invention  has  been  tested  and  approved  as  superior  to 
that  it  is  using,  it  is  required  to  adopt  and  use  the  better  machinery.  Ib. 

2529.  Where  property  is  destroyed  by  fire  caused  by  sparks  thrown 
from  a  passing  engine,  through  the  negligence  of  the  servants  of  the 
company,  and  the  destruction  of  the  property  is,  under  the  circum- 
stances of  the  case,  a  natural  consequence,  which  any  reasonable  per- 
son could  have  anticipated,  then  the  act  of  throwing  the  sparks  which 
originated  the  fire,  is  a  proximate  cause,  whether  the  property  des- 
troyed is  the  first  or  tenth,  the  latter  being  so  situated  that  its  destruc- 
tion is  a  consequence  reasonably  to  be  anticipated  from  setting  the 
first  on  fire,  and  the  company  will  be  liable.    But  if  the  destruction  of 
the  property  is  not  the  natural  and  proximate  consequence  of  the 
escaping  of  the  sparks,  and  consequent  firing  of  the  first  building, 


AND  EMINENT  DOMAIN.  297 

then  the  company  will  not  be  liable.    T.,   W.  &  W.  Ry.  v.  Muthers- 
baugh,  71  111.  572. 

2530.  A  warehouse  standing  near  the  railroad  track  was  set  on  fire 
by  sparks  escaping  from  an  engine  of  the  company,  there  being  at  the 
time  a  strong  wind  blowing  in  the  direction  of  the  plaintiff's  stable, 
which  was  situated  101  rods  from  the  warehouse,  and  there  was  no 
combustible  matter  intervening.    The  high  wind  carried  the  brands 
from  the  warehouse  to  the  stable  which  caused  it  to  take  fire  and  burn 
up:  Held,  that  the  burning  of  the  stable  was  not  the  natural  and  prox- 
imate consequence  of  the  burning  of  the  warehouse,  and  that  the 
company  was  not  liable  for  the  burning  of  the  stable.     T.,  W.  &  W. 
Ry.  v.  Muthersbaugh,  71  111.  572. 

2531.  Where  a  party  erects  his  building  at  a  reasonably  safe  dis- 
tance from  the  railroad  track,  he  cannot  be  held  guilty  of  negligence 
because  his  building  is  so  situated  as  to  be  liable  to  be  set  on  fire  by 
another  subsequently  erected  in  a  dangerous  proximity  to  the  track. 
T.,  W.  &  W.  Ry.  v.  Maxfield,  72  111.  95 . 

2532.  VARIANCE.    Where  the  declaration  alleges. that  plaintiff's 
stacks  were  set  on  fire  by  sparks  from  the  defendant's  locomotive, 
evidence  that  they  were  destroyed  by  a  fire  which  originated  in  another 
field,  even  though  such  fire  was  occasioned  by  sparks  from  the  defend- 
ant's engine,  will  not  sustain  the  averment  and  plaintiff  cannot  recover. 
T.,  W.  &  W.  Ry.  v.  Morgan,  72  111.  155. 

2533.  It  is  not  sufficient  to  overcome  the  statutory  presumption  of 
negligence  from  the  escape  of  fire,  to  show  that  the  engine  was 
equipped  with  the  proper  appliances  to  prevent  the  escape  of  fire,  and 
that  the  same  was  in  good  order,  but  it  is  also  necessary  to  show  that 
the  engine  was  properly  handled  and  managed  by  a  competent  and 
skillful  engineer.    St.  L.,  V.  &  T.  H.  R.  R.  v.  Funk,  85  111.  460. 

2534.  Under  the  statute  a  railway  company  in  the  use  of  a  railroad 
as  lessee  or  otherwise,  is  guilty  of  negligence  if  it  fails  to  keep  the 
right  of  way  clear  from  all  dead  grass,  weeds,  &c.,  and  for  such  neglect 
is  made  liable  for  injuries  to  others  from  the  escape  and  transmission 
of  fire  from  its  engines.    P.,  C.  &  St.  L.  Ry.  v.  Campbell,  86  111.  443. 

2535.  The  communication  of  fire  by  any  locomotive  while  on  or 
passing  over  any  railroad,  affords  full  prima  facie  evidence  to  charge 
the  corporation  or  persons  in  the  use  of  such  road  as  owner,  lessee  or 
mortgagee,  under  the  statute  with  negligence  in  not  keeping  the  right 
of  way  free  from  combustible  matter,  and  in  the  use  of  the  engines 
and  for  not  having  them  in  all  respects  in  a  good  and  safe  condition. 
Proof  of  the  communication  of  fire  makes  a  case  entitling  the  plain- 
tiff to  recover  against  any  company  using  or  occupying  the  road. 
P.,  C.  &  St.  L.  Ry.  v.  Campbell,  86  111.  443. 

2536.  If  the  servants  of  a  railway  company,  to  free  its  right  of 
way  from  dry  grass  and  combustible  matter,  put  out  a  fire  on  the 
same  on  a  day  when  the  wind  is  high,  and  the  fire  escapes  from  them 
upon  the  lands  of  plaintiff  without  his  negligence  or  fault,  and  in- 
jures his  apple  trees,  the  company  will  be  liable.    O.  &  M.  Ry.  v.  Por- 
ter, 92  111.  437- 

2537.  The  law  requires  a  railroad  company,  in  operating  its  trains, 
to  use  every  possible  precaution,  by  the  use  of  all  the  best  and  most 
approved  mechanical  inventions  to  prevent  loss  from  the  escape  of 
fire  or  sparks  along  the  line  of  its  road,  and  such  company  will  be 
liable  for  a  loss  by  fire  caused  by  a  neglect  of  such  duty  where  the 
owner  of  the  property  is  free  from  negligence.    C.  &  A.  R.  R.  v.  Pen- 
nell,  94  111.  448. 

2538.  A  party  who  erects  a  building  on  or  near  a  railroad  track 
knows  the  dangers  incident  to  the  use  of  steam  as  a  motive  power, 


298  RAILROADS,  WAREHOUSES, 

and  must  be  held  to  assume  some  of  the  hazards  connected  with  its 
use  on  such  thoroughfares.  While  he  has  the  right  to  build  near  the 
track,  yet  if  he  does  so,  he  is  bound  to  a  higher  degree  of  care  in  pro- 
viding proper  means  to  protect  his  property,  than  if  otherwise  situ- 
ated. He  must  also  use  all  reasonable  means  to  save  his  property  in 
case  of  fire.  Ib. 

2539.  Where  a  building  near  a  railroad  track  is  set  on  fire  through 
the  negligence  of  the  railway  company,  the  owner  cannot  recover  for 
the  loss  of  such  property  as  he  could  easily  and  without  danger  have 
saved  from  destruction.     C.  &  A.  R.  JR. v.  Pennell,  94  111.  448. 

2540.  The  statute  which  declares  that  in  actions  for  damages  for 
injury  to  property  "occasioned  by  fire  communicated  by  any  locomo- 
tive engine  while  passing  along  any  railroad"  shall  be  prima  fatie 
evidence  "to  charge  with  negligence,"  the  owner  or  operator  of  the 
road  at  the  time,  was  intended  to  charge  upon  the  company  using  the 
locomotive  all  injuries  which  are  shown  to  have  resulted  from  fire 
from  a  passing  train,  unless  the  company  can  rebut  such  presumption 
by  proof  showing  that  the  loss  was  not  occasioned  by  its  negligence. 
C.  &  A.  R.  R.  v;  Pennell,  110  111.  435. 

2541.  PROXIMATE  CAUSE.     Where  a  railway  company  through 
negligence,  by  the  escape  of  fire  from  an  engine,  sets  fire  to  a  depot, 
from  which  a  hotel  in  the  vicinity  is  destroyed,  to  make  the  company 
liable  to  the  owner  of  the  hotel,  it  is  not  necessary  that  the  burning  of 
the  hotel  should  be  so  certain  to  result  from  the  burning  of  the  depot 
that  a  reasonable  person  could  have  foreseen  that  the  hotel  would 
burn,  or  that  it  probably  would.    It  is  enough  if  it  be  a  consequence 
so  natural  and  direct  that  a  reasonable  person  might  and  naturally 
would  see  that  it  was  liable  to  result  from  the  burning  of  the 
depot.    Ib. 

2542.  In  an  action  to  recover  the  value  of  a  stack  of  hay  alleged 
to  have  been  burned  by  fire  communicated  from  a  locomotive,  an 
instruction  that  if  the  jury  believe  the  hay  was  destroyed  by  fire  com 
municated  from  one  of  defendant's  engines,  and  that  defendant's 
right  of  way  was  not  free  from  dry  grass  and  other  combustible  mat- 
ter at  the  place  where  the  fire  started,  &c.,  is  erroneous,  in  assuming 
that  the  fire  originated  on  defendant's  right  of  way.    C.  &  A.  R.  R.  v. 
Bloomfield,  1  Bradw.  211. 

2543.  Error  to  instruct  that  defendant  must  show  not  only  that 
the  engine  was  supplied  with  the  best  and  most  approved  appliances 
to  prevent  the  escape  of  sparks  at  the  time  of  the  fire,  but  also  that 
the  engine  was  originally  so  constructed.    Sufficient  if  it  was  properly 
constructed  at  time  of  fire.    C.  &  N.  W.  Ry.  v.  Boiler,  1  Bradw.  625. 

2544.  In  an  action  for  damages  caused  by  tire  escaping  from  an  en- 
gine, an  instruction  for  the  plaintiff  which  fails  to  include  the  ques- 
tion whether  the  engine  was  supplied  with  proper  appliances  for 
arresting  sparks,  is  erroneous,  where  there  is  testimony  tending  to 
prove  that  fact.    C.  &  A.  R.  R.  v.  Smith,  10  Bradw.  359. 

2545.  Where  the  evidence  shows  that  the  engines  causing  the  fire 
were  equipped  with  the  best  and  most  approved  appliances  for  pre- 
venting the  escape  of  fire  or  sparks,  and  were  properly  and  prudently 
managed,  and  no  negligence  on  the  part  of  the  company  is  shown,  no 
recovery  can  be  had  for  the  setting  on  fire  an  adjoining  building. 
C.  &  A.  R.  R.  v.  Smith,  11  Bradw.  348. 

2546.  Where  damage  is  caused  by  a  fire  communicated  to  prop- 
erty from  sparks  of  an  engine,  the  prima  fac-ie  case  made  out  under 
the  statute  (section  89)  is  rebutted  by  the  company  showing  that  at 
the  time  of  the  accident,  the  engine,  smoke  stack  and  spark  arrester 
were  all  safe  and  in  good  order,  and  the  engineer  in  charge  of  the  loco- 


AND  EMINENT  DOMAIN.  299 

motive  was  experienced  and  competent  and  properly  performed  his 
duty.  /.,  B.  &  W.  Ry.  v.  Craig,  14  Bradw.  407. 

2547.  In  an  action  for  damages  resulting  from  a  fire  set  by  de- 
fendant's locomotive  in  January,  evidence  that  defendant  cut  and 
burned  the  grass  and  weeds  upon  its  right  of  way  in  September  or 
October  previous,  is  not  sufficient  to  show  a  compliance  with  the  law. 
Ind.,  B.  &  W.  Ry.  v.  Nicewander,  21  App.  Rep.  305. 

2548.  Whether  corporation  is   guilty  of   negligence    under  this 
statute  is  a  question  of  fact.    Ib. 

PROTECTION  OF  PASSENGERS. 

An  act  for  the  protection  of  passengers  on  railroads  and  steamboats.  Approved 
May  14,  1877.  In  force  July  1,  1877.  [Laws  of  1877,  p.  166.  As  amended  by  an  act  ap- 
proved May  29, 1879.  In  force  July  1,  1879.  Laws  of  187«,  p.  «23.  R.  S.  1887,  p.  1020, 
§§  105-107;  8.  &  C.,  p.  1950,  §§  106-108;  Cothran,  p.  1161,  1162,  §§  91-93.] 

2549.  §  1.  -Be  it  enacted  by  the  people  of  the  state   of 
Illinois,  represented  in  the  general  assembly,  That  an  act 
entitled  "An  act  for  the  protection  of  passengers  on  rail- 
roads," approved  May  14,  1877,  in  force  July  1,  1877,  be 
amended  so  as  to  read  as  follows :  "An  act  for  the  protection 
of  passengers  on  railroads  and  steamboats." 

2549«.      CONDUCTOES   INVESTED  WITH  POLICE  POWERS.     §2. 

That  the  conductors  of  all  railroad  trains,  and  captain  or 
master  of  any  steamboat  carrying  passengers  within  the  juris- 
diction of  this  state,  shall  be  invested  with  police  powers  while 
on  duty  on'  their  respective  trains  and  boats. 

2550.  EJECTION  OF  PASSENGER  FROM  TRAIN.    §3.  When 
any  passenger  shall  be  guilty  of  disorderly  conduct,  or  use 
any  obscene  language,  to  the  annoyance  and  vexation  of  pas- 
sengers, or  play  any  games  of  cards,  or  other  games  of  chance 
for  money  or  other  valuable  thing,  upon  any  railroad  train  or 
steamboat,  the  conductor  of  such  train,  and  captain  or  master 
of  such  steamboat,  is  hereby  authorized  to  stop  his  train  or 
steamboat,  at  any  place  where  such  offense  has  been  commit- 
ted and  eject  such  passenger  from  the  train  or  boat,  using 
only  such  force  as  may  be  necessary  to  accomplish  such  re- 
moval, and  may  command  the  assistance  of  the  employes  of 
the  railroad  company  or  steamboat,  or  any  of  the  passengers, 
to  assist  in  such  removal;  but  before  doing  so  he  shall  tender 
to  such  passenger  such  proportion  of  the  fare  he  has  paid  as 
the  distance  he  then  is  from  the  place  to  which  he  has  paid 
his  fare,  bears  to  the  whole  distance  for  which  he  has  paid 
his  fare. 

2551.  WHEN  PASSENGER  MAY  BE  ARRESTED.    §4.  When 
any  passenger  shall  be  guilty  of  any  crime  or  misdemeanor 
upon  any  train,  or  steamboat,  the  conductor,  captain  or  mas- 
ter, or  employes  of  such  train,  or  boat,  may  arrest  such  pas- 
senger and  take  him  before  any  justice  of  the  peace,  in  any 
county  through  which  such   boat  or  train  may  pass,  or  in 


300  EAILROADS,  WAREHOUSES, 

which  its  trip  may  begin  or  terminate,  and  file  an  affidavit 
before  such  justice  of  the  peace,  charging  him  with  such 
crime  or  misdemeanor. 

STRIKES  AND  OBSTRUCTIONS  OF  RAILROADS. 

An  act  to  prohibit  any  person  from  obstructing  the  regular  operation  and  conduct  of 
the  business  of  railroad  companies  or  other  corporations,  firms  or  individuals.  Appro- 
ved June  2,  1877.  In  force  July  1,  1877.  [L.  1877,  p.  167;  R.  t*.  1887,  p.  1030,  §§  108-111 ;  S. 
&  C.,  p.  1951,  §§  109-112;  Cothran,  p.  1162,  §§  94-97.] 

2552.  ENGINEER  NOT  TO  ABANDON  ENGINE.     §  1.  Be  it 
enacted  by  the  people  of  the  state  of  Illinois,  represented  in 
the  general  assembly,  If  any  locomotive  engineer  in  further- 
ance of  any  combination  or  agreement,  shall  willfully  and 
maliciously  abandon  his  locomotive  upon  any  railroad  at  any 
other  point  than  the  regular  schedule  destination  of  such 
locomotive,  he  shall  be  fined  not  less  than  twenty  dollars,  nor 
more  than  one  hundred  dollars,  and  confined  in  the  county 
jail,  not  less  than  twenty  days,  nor  more  than  ninety  days. 

2553.  PERSONS  OBSTRUCTING  BUSINESS  OF  RAILROAD- 
FINE.     §  2.  If  any  person  or  persons  shall  willfully  and  mali- 
ciously, by  any  act  or  by  means  of  intimidation,  impede  or 
obstruct,  except  by  due  process  of  law,  the  regular  operation 
and  conduct  of  the  business  of  any  railroad  company  or  other 
corporation,  firm  or  individual  in  this  state,  or  of  the  regular 
running  of  any  locomotive  engine,  freight  or  passenger  train 
of  any  such  company,  or  the  labor  and  business  of  any  such 
corporation,  firm  or  individual  he  or  they  shall,  on  conviction 
thereof,  be  punished  by  a  fine  not  less  than  twenty  dollars, 
($20.00)  nor  more  than  two  hundred  dollars  ($200.00),  and 
confined  in  the  county  jail  not  less  than  twenty  nor  more 
than  ninety  days. 

2554.  CONSPIRACY  TO  IMPEDE  BUSINESS.    §  3.  If  two  or 
more  persons    shall  willfully  and    maliciously  combine  or 
conspire  together  to  obstruct  or  impede  by  any  act,  or  by 
means  of  intimidation,  the  regular  operation  and  conduct  of 
the  business  of  any  railroad  company  or  any  other  corpora- 
tion, firm  or  individual  in  this  state,  or  to  impede,  hinder  or 
obstruct,  except  by  due  process  of  law,  the  regular  running 
of  any  locomotive  engine,  freight  or  passenger  train  on  any 
railroad,  or  the  labor  or  business  of  any  such  corporation, 
firm,  or  individual,  such  persons  shall,  on  conviction  thereof, 
be  punished  by  fine  not  less  than  twenty  dollars  ($20.00), 
nor  more  than  two  hundred  dollars  ($200.00),  and  confined 
in  the  county  jail  not  less  than  twenty  days,  nor  more  than 
ninety  days. 

2555.  CONSTRUCTION  OF  ACT.    §  4.  This  act,  shall  not  be 
construed  to  apply  to  cases  of  persons  voluntarily  quitting 
the  employment  of  any  railroad  company  or  such  other  cor- 


AND  EMINENT  DOMAIN.  301 

poration,  firm  or  individual,  whether  by  concert  of  action  or 
otherwise,  e[x]cept  as  is  provided  in  section  one  (1)  of  this 
act. 

FKAUD  IN  RELATION  TO  TICKET. 


2556.  OWNER  TO  FURNISH  AGENT  CERTIFICATE  OF  AUTHOR- 
ITY TO  SELL  TICKETS.     §  1.  Be  it  enacted  by  the  people  of  the 
state  of  Illinois,  represented  in  the  general  assembly,  That 
it  shall  be  the  duty  of  owner  or  owners  of  any  railroad  or 
steamboat  for  the  transportation  of  passengers,  to  provide 
each  agent,  who  may  be  authorized  to  sell  tickets,  or  other 
certificates  entitling  the  holder  to  travel  upon  any  railroad 
or  steamboat,  with  a  certificate   setting  forth  the  authority 
of  such  agent  to  make  such  sales;  which  certificate  shall  be 
duly  attested  by  the  corporate  seal  of  the  owner  of  such 
railroad  or  steamboat. 

2557.  NOT  LAWFUL  FOR  PERSON  NOT  HAVING  SUCH  AUTHOR- 
ITY TO  SELL  TICKETS.     §  2.  That  it  shall  not  be  lawful  for 
any  person  not  possessed  of  such  authority,  so  evidenced,  to 
sell,  barter  or  transfer,  for  any  consideration  whatever,  the 
whole  or  any  part  of  any  ticket  or  tickets,  passes,  or  other 
evidences  of  the  holder's  title  to  travel  on  any  railroad  or 
steamboat,  whether  the  same  be  situated,  operated  or  owned 
within  or  without  the  limits  of  this  state. 

2558.  PENALTY  FOR  VIOLATING  ACT.     §3.  That  any  per- 
son or  persons  violating  the  provisions  of  the  second  section 
of  this  act  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  liable  to  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars,  and  by  imprisonment   not   exceeding  one   year,  or 
either,  or  both,  in  the  discretion  of  the  court  in  which  such 
person  or  persons  shall  be  convicted. 

2559.  AGENT  TO  EXHIBIT  CERTIFICATE  ON  REQUEST.     §4. 
That  it  shall  be  the  duty  of  every  agent  who  shall  be  author- 
ized to  sell  tickets,  or  parts  of  tickets,  or  other  evidences  of 
the  holder's  title  to  travel,  to  exhibit  to  any  person  desiring 
to  purchase  a  ticket,  or  to  any  officer  of  the  law  who  may 
request  him,  the  certificate  of  his  authority  thus  to  sell,  and 
to  keep  said  certificate  posted  in  a  conspicuous  place  in  his 
office  for  the  information  of  travelers. 

2560.  DUTY  OF  OWNER  TO  PROVIDE  FOR  REDEMPTION  OF 
TICKETS.     §  5.  That  it  shall  be  the  duty  of  the  owner  or 
owners  of  railroad  or  steamboat,  by  their  agents  or  managers, 
to  provide  for  the  redemption  of  the  whole,  or  any  parts  or 
coupons  of  any  ticket  or  tickets,  as  they  may  have  sold,  as 
the  purchaser,  for  any  reason,  has  not  used,  and  does  not 


302  RAILROADS,  WAREHOUSES, 

desire  to  use,  at  a  rate  which  shall  be  equal  to  the  difference 
between  the  price  paid  for  the  whole  ticket  and  the  cost  of  a 
ticket  between  the  points  for  which  the  proportion  of  said 
ticket  was  actually  used;  and  the  sale  by  any  person  of  the 
unused  portion  of  any  ticket  otherwise  than  by  the  presenta- 
tion of  the  same  for  redemption,  as  provided  for  in  this 
section,  shall  be  deemed  to  be  a  violation  of  the  provisions  of 
this  act,  and  shall  be  punished  as  is  hereinbefore  provided: 
Provided,  that  this  act  shall  not  prohibit  any  person  who  has 
purchased  a  ticket  from  any  agent  authorized  by  this  act,  with 
the  bonafide  intention  of  traveling  upon  the  same,  from  sell- 
ing any  part  of  the  same  to  any  other  person. 

2561.  PENALTY  FOR  FAILURE  TO  REDEEM  TICKETS.    §  6. 
Any  railroad  or  steamboat  company  that  shall,  by  any  of  its 
ticket  agents  in  this  state,  refuse  to  redeem  any  of  its  tickets 
or  parts  of  tickets  as  prescribed  in  section  five  of  this  act,  shall 
pay  a  fine  of  five  hundred  dollars  for  each  offense,  to  the 
people  of  the  state  of  Illinois,  and  it  shall  be  unlawful  for 
said  company,  subsequent  to  such  refusal,  to  sell  any  ticket 
or  tickets  in  this  state  until  such  fine  is  paid. 

RECEIVING,  CARRYING  AND  DELIVERING  GRAIN. 

An  act  regulating  the  receiving,  transportation  and  delivery  of  grain  by  railroad  cor- 
porations, and  defining  the  duties  of  such  corporations  with  respect  thereto.  Approved 
April  25,  1871.  In  force  July  1, 1871.  [L.  1871.  p.  636;  E.  S.  1887,  p.  1022,  §  118;  S.  &  C., 
p.  1952,  §  119;  Cothran,  p.  1164,  §  104.] 

2562.  RECEIVE  AND  CARRY  GRAIN  WITHOUT  DISTINCTION. 
§  1.  Be  it  enacted  by  the  people  of  the  state  of  Illinois,  rep- 
resented in  the  general  assembly,  That  every  railroad  corpo- 
ration, chartered  by  or  organized  under  the  laws  of  this  state 
or  doing  business  within  the  limits  of  the  same,  when  desired 
by  any  person  wishing  to  ship  any  grain  over  its  road,  shall 
receive  and  transport  such  grain  in  bulk,  within  a  reasonable 
time,  and  load  the  same  either  upon  its  track,  at  its  depot,  or 
in  any  warehouse  adjoining  its  track  or  side  track,  without 
distinction,  discrimination  or  favor  between  one  shipper  and 
another,  and  without  distinction  or  discrimination  as  to  the 
manner  in  which  such  grain  is  offered  to  it  for  transportation, 
or  as  to  the  person,  warehouse  or  place  to  whom  or  to  which 
it  may  be  consigned. 

WEIGHING  IN — RECEIPT.  And  at  the  time  such  grain  is 
received  by  it  for  transportation,  such  corporation  shall  care- 
fully and  correctly  weigh  the  same,  and  issue  to  the  shipper 
thereof  a  receipt  or  bill  of  lading  for  such  grain,  in  which 
shall  be  stated  the  true  and  correct  weight. 

WEIGHING  OUT— SHRINKAGE.  And  such  corporation  shall 
weigh  out  and  deliver  to  such  shipper,  his  consignee  or 
other  person  entitled  to  receive  the  same,  at  the  place  of 


AND  EMINENT  DOMAIN.  303 

delivery,  the  full  amount  of  such  grain,  without  any  deduc- 
tion for  leakage,  shrinkage  or  other  loss  in  the  quantity  of 
the  same. 

DAMAGES.  In  default  of  such  delivery,  the  corporation  so 
failing  to  deliver  the  full  amount  of  such  grain  shall  pay  to 
the  person  entitled  thereto  the  full  market  value  of  any  such 
grain  not  delivered  at  the  time  and  place  when  and  where  the 
same  should  have  been  delivered. 

EVIDENCE  —  SHORTAGE.  If  any  such  corporation  shall,  upon 
the  receipt  by  it  of  any  grain  for  transportation,  neglect  or 
refuse  to  weigh  and  receipt  for  the  same,  as  aforesaid,  the 
sworn  statement  of  the  shipper,  or  his  agent  having  personal 
knowledge  of  the  amount  of  grain  so  shipped,  shall  be  taken 
as  true,  as  to  the  amount  so  shipped;  and  in  case  of  the  neg- 
lect or  refusal  of  any  such  corporation,  upon  the  delivery  by 
them  of  any  grain,  to  weigh  the  same,  as  aforesaid,  the  sworn 
statement  of  the  person  to  whom  the  same  was  delivered,  or 
his  agent  having  personal  knowledge  of  the  weight  thereof, 
shall  be  taken  as  true,  as  to  the  amount  delivered.  And  if, 
by  such  statements,  it  shall  appear  that  such  corporation  has 
failed  to  deliver  the  amount  so  shown  to  be  shipped,  such 
corporation  shall  be  liable  for  the  shortage,  and  shall  pay  to 
the  person  entitled  thereto  the  full  market  value  of  such 
shortage,  at  the  time  and  place  when  and  where  the  same 
should  have  been  delivered. 

2563.  DISCRIMINATION — as  to  person.    Where  the  company  from 
a  pressing  cause,  takes  grain  from  wagons  or  boats,  while  grain  re- 
mains for  shipment  in  private  warehouses,  acting  in  good  faith,  and 
without  partiality  or  oppression,  it  will  not  thereby  incur  liability. 
&.  &  C.  U.  R.  R.  v.  Rae,  18  111.  488. 

2564.  If  its  servants,  by  reason  of  bribes  or  other  improper  motives, 
give  preference  to  one  person  over  another,  the  company  may  be  held 
liable  for  damages  thereby  caused.    Ib. 

2565.  DELAY.     Must  use  proper  diligence  to  transport  freight 
offered,  without  delay,  and  unless  it  can  excuse  itself  for  the  delay  it 
will  be  liable  in  an  action  on  the  case.    Ib. 

2566.  Must  receive  freights  according  to  its  usage  and  custom.    If 
in  the  habit  of  running  its  cars  upon  side  tracks  to  a  private  ware- 
house to  receive  freights,  a  readiness  to  deliver  freights  at  such  ware- 
house will  impose  on  the  company  the  duty  to  take  the  freight  there- 
from.   Ib. 

2567.  TENDER  or  CHARGES.    A  tender  or  readiness  to  pay  the 
freight  must  be  proved  in  an  action  to  recover  for  non-transporta- 
tion or  delay  in  same.    Ib. 

2568.  WAIVER.    By  omitting  to  demand  prepayment  of  freight, 
the  company  will  be  bound  to  transmit  freight  according  to  its 
custom.    Where  not  demanded  slight  evidence  of  willingness  to  pay 
will  be  sufficient,  and  readiness  to  pay  may  be  presumed  from  the 
circumstances.    Ib. 

2569.  DELAY.     Where  a  box  shipped  at  Adrian  for  Chicago  on 
October  29th,  arriving  at  Chicago  on  November  3d,  the  usual  time 


304  RAILROADS,  WAREHOUSES, 

for  transportation  being  three  days,  and  was  not  delivered  by  the 
freight  agent  until  November  15th,  this  was  held  such  an  unreason- 
able delay  as  to  entitle  the  owner  to  damage.  M .  8.  &  N.  I.  R.  R.  v. 
Day,  20  111.  375. 

2570.  Company  bound  to  use  every  reasonable  effort  without  de- 
lay to  deliver  at  its  destination  in  proper  time,  cattle  loaded  by  the 
shipper,  and  for  a  failure  to  do  so,  will  be  liable  for  all  proximate 
damages.    0.  &  M.  R.  R.  v.  Dunbar,  20  111.  623. 

2571.  Where  the  goods  are  placed  in  a  car  of  the  company  with 
its  assent  for  shipment,  it  becomes  liable  for  them  the  same  as  if  deliv- 
ered in  its  warehouse.    I.  C.  R.  R.  v.  Smyser  &  Co.,  38  111.  354. 

2572.  Where  cattle  are  loaded  in  the  cars  by  the  owner,  with  the 
knowledge  of  the  company,  it  should  take  them  by  the  most  regular 
cattle  train,  and  failing  to  do  so,  will  become  liable  for  any  damage 
thereby  caused  to  the  cattle.    /.  C.  R.R.v.  Waters,  41 111.73. 

2573.  Measure  of  damage  for  delay  in  carrying  cattle.    /.  C.  R. R. 
v.  Waters,  41  111.  73:  or  for  not  delivering  in  a  reasonable  time.    /.  C. 
R  R.  v.  McClellan,  54  111.  58;  /.  C.R.R.  v.  Cobb,  64  111.  128. 

2574.  Where  the  usual  time  for  the  transportation  of  corn  was  two 
and  a  half  to  three  days,  a  delay  of  eleven  days,  and  as  to  a  part,  of 
forty-five  days,  in  its  reaching  its  destination,  is  unreasonable,  and 
renders  the  company  liable  for  damages.    /.  C.  R.  R.  v.  McClellan,  54 
111.  58. 

2575.  A  railway  company  having  received  a  large  quantity  of  wool 
for  transportation  to  Boston,  carried  it  within  fifty  miles  of  the  termi- 
nus of  its  road,  where,  owing  to  the  obstruction  of  the  road  with  which 
it  connected,  from  snow,  the  wool  was  stored  for  two  months,  within 
which  time  the  price  declined  in  the  Boston  market:  Held,  that  the 
company  was  liable,  if  for  no  other  reason,  because  its  agents  knew 
that  the  road  was  so  blocked  with  freight  that  the  wool  could  not  go 
through  within  a  reasonable  time,  and  failed  to  inform  the  shipper  of 
this  fact  that  he  might  have  either  sold  at  the  point  whence  shipped, 
or  have  selected  another  route.    Great  Western  Ry.  v.  Burns,  60  111.  284. 

2576.  A  railway  company  having  received  goods  for  transportation 
without  giving  notice  of  facts  that  would  cause  delay,  are  required  to 
carry  the  same  through  in  a  reasonable  time,  or  respond  in  damages 
caused  by  the  delay.    Ib. 

2577.  A  common  carrier  has  no  right  to  store  a  part  of  the  freight 
received  for  transportation,  and  leave  it  there,  while  it  receives  new 
freight,  and  sends  it  through,  and  when  it  does  so  it  must  make  com- 
pensation to  the  parties  injured  thereby.    Gh:  West.  Ry.  v.  Burns,  60 
111.  284. 

2578.  The  fact  that  the  latter  shipments  were  of  perishable  prop- 
erty and  live  stock,  will  not  furnish  any  excuse.    Freight  should  not 
be  received  until  it  can  be  sent  through  without  delaying  other  freight 
having  the  precedence.    Ib . 

2579.  A  delay  of  over  thirty  days  in  the  transportation  of  grain, 
when  the  ordinary  time  required  is  only  two  or  three  days,  is  unrea- 
sonable, and  not  excusable  on  account  of  causes  known  at  the  time  of 
accepting  the  same.    /.  C.  R.  R.  v.  Cobb,  64  111.  128. 

2580.  Where  a  limited  military  control  was  being  exercised  over  a 
railroad  during  the  war,  and  its  shipments  were  immense,  so  that  the 
side  tracks  of  the  road  for  a  considerable  distance  were  filled  with 
loaded  cars  waiting  to  be  unloaded  by  the  military  authorities:    Held, 
that  it  was  the  right  and  duty  of  the  company  to  refuse  to  accept  per- 
ishable freights  for  shipment  to  its  terminus,  until  its  line  was  clear. 
Ib. 


AND  EMINENT  DOMAIN.  305 

2581.  The  right  conferred  upon  railroad  corporations  to  carry  pas- 
sengers and  property  for  a  compensation,  is  coupled  with  a  corres- 
ponding duty,  that  they  shall  receive  and  carry  passengers  and  freights 
over  their  roads  as  they  may  be  offered.    P.  &  R.  1.  Ry.  v.  C.  V.  M. 
Co.,  68  111.  489. 

2582.  The  duties  railroad  corporations  owe  to  the  public  and  which 
are  the  considerations  upon  which  their  privileges  are  conferred,  can- , 
not  be  avoided  by  neglect,  refusal  or  by  agreement  with  other  persons 
or  corporations.    Therefore  any  contract  to  prevent  the  faithful  dis- 
charge of  any  such  duties  will  be  against  public  policy  and  void.    Ib . 

2583.  It  is  the  duty  of  a  common  carrier  to  forward  and  deliver 
goods  at  the  point  it  contracts  to  convey  them  to,  within  a  reasonable 
time,  and  if  it  fails  to  do  so,  it  will  be  liable,  whether  it  knew  that  its 
connecting  line  could  not  without  unreasonable  delay,  forward  the 
goods  or  not.    Crowded  condition  of  connecting  road,  no  excuse.    T., 
W.  &  W.  Ry.  v.  Lockhart,  71  111.  627. 

2584.  MEASURE  OF  DAMAGES.    The  owner  of  grain  shipped  for 
market  is  entitled  to  recover  the  difference  between  the  market  price 
at  the  point  of  destination,  when  it  should  have  arrived,  and  the  time 
it  does  arrive.    If  in  consequence  of  the  delay  there  ceases  to  be  a 
market  for  the  grain  at  such  place,  the  owner  may  without  unreason- 
able delay,  ship  the  same  to  some  other  point,  and  sell  and  hold  the 
company  liable  for  the  loss.    /.  C.  R.  R.  v.  Cobb,  72  111.  148. 

2585.  DELAY  IN  FURNISHING  TRANSPORTATION.    Where  a  person 
desirous  of  shipping  a  large  quantity  of  corn  over  a  railroad  to  Cairo, 
stored  the  same  in  a  warehouse  on  the  premises  of  the  company  to  be 
transported  as  soon  as  cars  could  be  procured,  but  the  company  never 
received  or  receipted  for  the  same,  and  was  unable  to  forward  the 
same  for  want  of  cars  and  because  the  road  was  controlled  by  military 
authorities  of  the  United  States  who  refused  to  give  permits  to  ship 
the  same,  and  in  consequence  of  which  the  grain  was  injured  by  expo- 
sure, &c:    Held,  that  the  company  was  not  liable  to  the  owner  of  the 
grain  for  the  delay  in  furnishing  transportation.    /.  C.  R.  R.  v.  Horn- 
berger,  77  111  457. 

2586.  EXCUSE  FOR  DELAY.    Company  may  show  in  defense  that 
the  delay  was  caused  solely  by  the  lawless,  irresistible  violence  of  men 
who  were  not  in  its  employ.    P.,  Ft.  W.  &  C.  R.  R.  v.  Hazen,  84  111.  36. 

2587.  Liable  for  delay  caused  by  a  strike  among  its  servants,  &c. 
P.,  Ft.  W.  &  C.  R.  R.  v.  Hazen,  84  111.  36. 

2588.  As  to  negligence  in  not  forwarding  by  connecting  line.  Erie 
Ry.  v.  Wilcox,  84  111.  239. 

2589.  Where  a  railway  company  refused  to  furnish  cars  for  the 
transportation  of  grain  to  Cairo  during  the  war,  on  account  of  the 
large  accumulation  of  cars  on  its  track  at  that  point  waiting  to  be 
unloaded,  and  finally  furnished  cars  on  the  promise  of  the  shipper  to 
unload  the  same,  which  was  not  done,  either  by  him  or  the  consignee, 
but  refused,  it  was  held  in  a  suit  against  the  company  to  recover 
damages  for  delay  in  transporting  the  grain,  that  the  jury  were  justi- 
fied in  finding  for  the  defendant.    Cobb  v.  I.  C.  R.  R.,  88  111.  394. 

2590.  Company  is  bound  to  receive  and  transport  cattle  when  they 
are  first  offered  for  shipment,  unless  it  has  a  reasonable  excuse  for  its 
refusal,  and  when  its  refusal  to  take  and  ship  catl  le  is  without  such  . 
excuse,  it  will  be  liable  in  damages  to  the  owner  for  the  deterioration 
in  the  value  of  the  cattle.    C.  &  A.  R.  R.  v.  Erickson,  91  111.  613. 

2591.  An  unconstitutional  law  prohibiting  the  shipping  or  carry- 
ing of  Texas  or  Cherokee  cattle  into  or  through  the  state,  being  void, 

-21 


306  KAILROADS,  WAREHOUSES, 

will  afford  no  excuse  for  a  refusal  or  delay  in  receiving  and  shipping 
such  cattle  when  offered.    C.  &  A.  R.  R.  v.  Erickson,  91  111.  613. 

2592.  A  railway  company  under  military  control  and  operated  by 
the  military  in  the  transportation  of  troops,  munitions  of  war,  &c.,  so 
as  not  to  be  in  the  free  exercise  of  its  franchise,  is  not  liable  for 
refusing   to  receive  freights   for  transportation,  it  not  being  safe 
to  undertake  their  carriage.    But  if  it  accepts  and  undertakes  to 
carry  freights  such  military  interference  will  not  excuse  its  delay  to 
transport.    Phelps  v.  /.  C.  R.  R.,  94  111.  548. 

2593.  Where  a  railroad  is  under  the  military  control  of  the  United 
States  and  operated  by  its  officers,  the  company  is  not  in  the  free  use 
of  its  franchise,  and  its  duty  to  the  public  to  receive  and  transport 
freight  is  for  the  time  suspended,  and  it  is  not  liable  for  not  receiving 
freight  so  long  as  it  is  not  in  the  control  of  its  road.    I.  C.  R.  R.  v. 
Phelps,  4  Bradw.  238. 

2594.  For  a  delay  occasioned  by  the  refusal  of  the  company's  ser- 
vants to  do  their  duty,  the  company  is  responsible;  but  for  a  delay 
resulting  solely  from  the  lawless  violence  of  men  not  in  its  employ,  it 
is  not  responsible.    /.  &  St.  L.  R.  R.  v.  Juntgen,  10  Bradw.  295. 

2595.  For  a  failure  of  carrier  to  transport  cattle  to  their  destina- 
tion within  a  reasonable  time,  an  action  lies.     W.,  St.  L.  &  P.  Ry.  v. 
McCasland,  11  Bradw.  491. 

2596.  Nothing  but  the  act  of  God  or  the  public  enemy  will  excuse 
a  carrier  from  the  ultimate  delivery  of  goods  entrusted  to  its  care;  but 
it  is  not  to  the  same  extent  liable  for  every  delay  in  reaching  the 
place  of  destination.    Ib. 

2597.  Custom    or  usage  in  the  shipment  of   certain   classes  of 
freight  may:fix  the  liability  of  a  carrier  for  a  refusal  to  transport  that 
kind  of  freight  in  conformity  to  the  custom ;  but  custom  and  usage 
cannot  be  held  to  extend  the  terms  of  a  penal  statute.    /.  &  St.  L. 
Coal  Co.  v.  People,  19  Bradw.  141. 

2598.  The  fact  that  a  railway  is  under  military  control  in  time  of 
war,  is  a  sufficient  excuse  for  delay  in  making  shipment  of  goods. 
1.  G.  R.  R.  v.  Ashmead,  58  111.  487.    As  to  discrimination  see  post, 
2653,  2725. 

2599.  SCALES— WEIGHING — PENALTIES.  §2.  At  all  sta- 
tions or  places  from  which  the  shipments  of  grain  by  the 
road  of  such  corporation  shall  have  amounted  during  the 
previous  year  to  fifty  thousand  (50,000)  bushels  or  more, 
such  corporation  shall,  when  required  so  to  do  by  the  per- 
sons who  are  the  shippers  of  the  major  part  of  said  fifty 
thousand  bushels  of  grain,  erect  and  keep  in  good  condition 
for  use,  and  use  in  weighing  grain  to  be  shipped  over  its 
road,  true  and  correct  scales,  of  proper  structure  and  capac- 
ity for  the  weighing  of  grain  by  car  load  in  their  cars  after 
the  same  shall  have  been  loaded.  Such  corporation  shall  care- 
fully and  correctly  weigh  each  car  upon  which  grain  shall  be 
shipped  from  such  place  or  station,  both  before  and  after  the 
same  is  loaded,  and  ascertain  and  receipt  for  the  true  amount 
of  grain  so  shipped.  If  any  such  corporation  shall  neglect 
or  refuse  to  erect  and  keep  in  use  such  scales  when  required 
to  do  so  as  aforesaid,  or  shall  neglect  or  refuse  to  weigh  in 
the  manner  aforesaid  any  grain  shipped  in  bulk  from  any 


AND  EMINENT  DOMAIN.  307 

station  or  place,  the  sworn  statement  of  the  shipper,  or  his 
agent,  having  personal  knowledge  of  the  amount  of  grain 
shipped,  shall  be  taken  as  true  as  to  the  amount  so  shipped. 
In  case  any  railroad  corporation  shall  neglect  or  refuse  to 
comply  with  any  of  the  requirements  of  section  first,  second 
and  fifth  of  this  act,  it  shall,  in  addition  to  the  penalties 
therein  provided,  forfeit  and  pay  for  every  such  offense  and 
for  each  and  every  day  such  refusal  or  neglect  is  continued 
the  sum  of  one  hundred  dollars  ($100),  to  be  recovered  in  an 
action  of  debt  before  any  justice  of  the  peace,  in  the  name  of 
the  people  of  the  state  of  Illinois,  such  penalty  or  forfeiture 
to  be  paid  to  the  county  in  which  the  suit  is  brought,  and 
shall  also  be  required  to  pay  all  costs  of  prosecution,  includ- 
ing such  reasonable  attorney's  fees  as  may  be  assessed  by 
the  justice  before  whom  the  case  may  be  tried.  [As  amended 
by  act  approved  May  18,  1877.  In  force  July  1,  1877.  L. 
1877,  p.  168.  ( The  act  amending  this  section  contains  the 
following:  §  2.  All  parts  of  said  section  in  conflict  with  sec- 
tion one  of  this  act  are  hereby  repealed. )  R.  S.  1887,  p.  1022, 
§  119;  S.  &  C.,  p.  1953,  §  120;  Cothran,  p.  1165,  105.] 

2600.  DELIVEEY — PENALTY.  §  3.  Every  railroad  cor- 
poration which  shall  receive  any  grain  in  bulk  for  transpor- 
tation to  any  place  within  the  state,  shall  transport  and 
deliver  the  same  to  any  consignee,  elevator,  warehouse,  or 
place  to  whom  or  to  which  it  may  be  consigned  or  directed: 
Provided,  such  person,  warehouse  or  place  can  be  reached 
by  any  track  owned,  leased  or  used,  or  which  can  be  used  by 
such  corporation;  and  every  such  corporation  shall  permit 
connections  to  be  made  and  maintained  with  its  track  to  and 
from  any  and  all  public  warehouses  where  grain  is  or  may 
be  stored.  Any  such  corporation  neglecting  or  refusing  to 
comply  with  the  requirements  of  this  section,  shall  be  liable 
to  all  persons  injured  thereby  for  all  damages  which  they 
may  sustain  on  that  account,  whether  such  damages  result 
from  any  depreciation  in  the  value  of  such  property  by  such 
neglect  or  refusal  to  deliver  such  grain  as  directed,  or  in  loss 
to  the  proprietor  or  manager  of  any  public  warehouse  to 
which  it  is  directed  to  be  delivered,  and  costs  of  suit,  includ- 
ing such  reasonable  attorney's  fees  as  shall  be  taxed  by  the 
court.  And  in  case  of  any  second  or  later  refusal  of  such 
railroad  corporation  to  comply  with  the  requirements  of  this 
section,  such  corporation  shall  be  by  the  court,  in  the  action 
on  which  such  failure  dr  refusal  shall  be  found,  adjudged  to 
pay,  for  the  use  of  the  people  of  this  state,  a  sum  of  not  less 
than  $1,000,  nor  more  than  $5,000,  for  each  and  every  such 
failure  or  refusal,  and  this  may  be  a  part  of  the  judgment  of 
the  court  in  any  second  or  later  proceeding  against  such  cor- 
poration. In  case  any  railroad  corporation  shall  be  found 


308  BAILROADS,  WAREHOUSES, 

guilty  of  having  violated,  failed,  or  omitted  to  observe  and 
comply  with  the  requirements  of  this  section,  or  any  part 
thereof,  three  or  more  times,  it  shall  be  lawful  for  any 
person  interested  to  apply  to  a  court  of  chancery,  and  obtain 
the  appointment  of  a  receiver  to  take  charge  of  and  manage 
such  railroad  corporation  until  all  damages,  penalties,  costs 
and  expenses  adjudged  against  such  corporation  for  any  and 
every  violation  shall,  together  with  interest,  be  fully  satis- 
fied. [E.  S.  1887,  p.  1023,  §  120;  S.  &  C.,  p.  1954,  §  121; 
Cothran,  p.  1166,  §106.] 

PLACE  OF  DELIVERY. 

2601.  A  railway  company  must  receive  grain  according  to  its  cus- 
tom and  usage.    If  that  usage  is  to  run  its  cars  upon  a  side  track  to 
private  warehouses,  and  there  receive  grain  in  the  cars,  a  tender  ac- 
cordingly, or  notice  and  readiness  to  so  deliver,  will  impose  an  obliga- 
tion on  the  company  to  take  and  carry  the  grain.    Having  adopted  this 
mode  it  cannot  capriciously  require  that  the  grain  be  delivered  in  a 
different  manner,  or  at  a  different  place.    Q-.  &  Ch.  U.  R.  R.  v.  Rae,  18 
111.  488,  490. 

2602.  Under  §  22  of  act  of  1867  entitled  "warehousemen,"  railroad 
companies  were  positively  inhibited  from  making  delivery  of  any  grain 
which  they  had  received  for  transportation,  into  any  warehouse,  other 
than  that  to  which  it  is  consigned,  without  the  consent  of  the  owner 
or  consignee  thereof.     Vincent  v.  C.  &  A.  R.R.,  49  111.  33. 

2603.  Where  a  shipment  of  grain  is  made  to  a  party  having  his 
warehouse  on  the  line  of  the  road  by  which  the  grain  is  transported, 
and  such  consignee  is  ready  to  receive  it,  it  is  the  duty  of  the  carrier 
to  make  a  personal  delivery  to  him,  at  the  warehouse  to  which  it  is 
consigned.    Ib . 

2604.  Where  the  owner  of  adjacent  property,  had  with  the  consent 
of  the  company,  for  a  valid  consideration,  been  permitted  to  lay  down 
a  side  track,  connecting  with  the  track  of  the  company  for  the  purpose 
of  transporting  to  such  property  articles  of  freight,  and  such  owner 
has  erected  thereon  a  warehouse,  which  is  in  readiness  for  the  receipt 
of  such  freight,  such  side  track  is  to  be  considered  as  a  part  of  the 
line  of  the  company  for  the  purpose  of  delivery  under  this  statute.  Ib. 

2605.  In  order  to  compel  a  railway  company  to  deliver  grain  shipped 
on  its  road  in  bulk,  at  a  particular  elevator  to  which  it  may  be  con- 
signed, such  elevator  must  be  connected  by  some  track  with  the  rail- 
road line  of  the  company,  and  be  in  fact,  a  portion  thereof,  or  such  as 
would  be  regarded  as  a  portion  thereof,  for  the  purposes  of  such  deliv- 
ery under  the  act  of  1867.    People  ex  rel.  v.  C.  &  A.  R.  R.,  55  111.  95. 

2606.  Railway  companies  cannot  disregard  the  custom  which  has 
obtained  of  conveying  grain  in  bulk  over  the  lines  of  their  own  roads, 
and  delivering  it  at  any  elevator  thereon  to  which  it  may  be  con- 
signed.   Ib. 

2607.  If  consigned  to  an  elevator  or  warehouse  not  on  their  road 
and  beyond  its  terminus,  or  if  there  be  no  elevator  on  the  road,  then 
they  may  rightfully  refuse  to  receive  it  in  bulk.   People  ex  rel.  v.  C.  & 
A.  R.  R.,  55  111.  95. 

2608.  In  a  proceeding  by  .'mandamus  to  compel  a  railroad  company 
to  deliver  at  the  elevator  or  grain  warehouse  of  the  relator,  in  the  city 
of  Chicago,  whatever  grain  in  bulk  might  be  consigned  to  it,  upon  the 
line  of  their  road,  it  appeared  that  the  company  entered  the  city  from 


AND  EMINENT  DOMAIN.  309 

different  points  upon  separate  tracks  or  lines  of  road,  being  called 
divisions.  The  elevator  was  situate  upon  a  track  used  by  the  com- 
pany in  connection  with  the  business  of  one  of  these  divisions  exclu- 
sively, but  could  be  reached  from  the  other  divisions,  though  by  a 
very  indirect  route,  and  subjecting  the  company  to  great  loss  of  time 
and  pecuniary  damage,  in  the  delay  that  would  be  caused  to  their  reg- 
ular trains  and  business  on  the  latter  division:  Held,  that  the  roads 
constituting  these  divisions,  though  belonging  to  the  same  corpora- 
tion and  having  a  common  name,  were  for  the  purposes  of  transport- 
ation, substantially  different  roads,  constructed  under  different  chart- 
ers, and  the  track  upon  which  the  elevator  was  situated,  having  been 
laid  for  the  convenience  especially  of  one  of  those  divisions,  and  only 
approachable  from  the  other  under  the  difficulties  mentioned,  it  could 
not  be  regarded  that  the  elevator  was  upon  the  line  of  the  latter  divi- 
sion in  any  such  sense  as  to  make  it  obligatory  upon  the  company  to 
deliver  thereat  freight  coming  over  that  division.  C.  &  N.  W.  Ry.  v. 
People,  56  111.  365. 

2609.  But  the  track  upon  which  the  elevator  was  situated  was 
owned  and  used  by  the  respondent  company  and  another  company  in 
common,  and  was  a  direct  continuation  of  the  line  of  one  of  the  res- 
pondent company's  divisions,  and  of  easy  and  convenient  access  from 
that  division,  and  was  used  by  the  respondent,  not  only  to  deliver 
grain  to  other  elevators  thereon,  some  of  which  were  of  more  difficult 
access  than  that  of  the  relatpr,  but  also  to  deliver  lumber  and  other 
freight  coming  over  such  division,  thus  making  it  not  only  legally, 
but  actually,  by  positive  occupation,  a  part  of  their  road.    So  it  was 
held,  that  in  reference,  to  grain  coming  over  that  division,  the  track 
upon  which  the  relator's  elevator  was  situated,  was  to  be  regarded  as 
a  part  of  the  respondent's  line  of  road,  and  it  was  their  duty  to  deliver 
such  grain  to  the  elevator,  if  consigned  to  it.    Ib. 

2610.  Where  grain  in  bulk  is  consigned  to  a  particular  elevator  on 
the  line  of  a  railroad,  it  is  no  sufficient  excuse  for  the  c.ompany  to 
refuse  to  so  deliver,  that  it  cannot  do  so  without  a  large  additional 
expense  caused  by  the  loss  of  the  use  of  motive  power,  labor  of  ser- 
vants, and  loss  of  use  of  cars,  while  the  same  is  being  delivered  and 
unloaded  at  such  elevator,  and  brought  back,  for  it  is  precisely  that 
expense  for  which  the  company  is  paid  its  freight.    C.  &  N.  W.  Ry.  v. 
People,  56  111.  365. 

2611.  By  the  rules  of  the  common  law,  railway  companies  cannot 
be  compelled  to  permit  individuals  to  connect  side  tracks  of  their  own 
with  the  tracks  of  the  companies,  in  order  to  enable  the  latter  to  carry 
grain  to  warehouses  or  elevators  which  have  been  erected  off  their 
lines  of  roads.    People  v.  C.  &  N.  W.  Ry.,  57  111.  436. 

2612.  And  where  it  is  sought  to  compel  a  railroad  company  to  per- 
mit such  connection  upon  the  ground  of  an  alleged  custom  among  the 
companies  whose  lines  concentrate  at  the  place  indicated,  the  custom 
must  be  clearly  made  to  appear,  and  to  have  existed  so  long  as  to  have 
the  force  of  law.    Ib. 

2613.  A  contract  by  the  owner  of  an  elevator  to  connect  the  same 
with  a  railroad,  personal  in  its  nature,  confers  no  rights  upon  a  lessee 
of  such  owner.    People  v.  C.  &  N.  W.  Ry.,  57  111.  436. 

2614.  To  make  a  railway  company  liable  under  this  section  for  not 
delivering  grain  to  the  consignee  or  place  of  consignment,  the  freight 
must  be  in  bulk,  and  must  be  consigned  to  the  warehouse  or  place  in 
question  at  the  time  of  shipment.    A  demand  at  the  place  of  destina- 
tion is  not  of  itself  sufficient.    C.  &  N.  W.  Ry.  v.  Stanbro,  87  111.  195. 

2615.  DAMAGES.    In  a  simple  action  on  the  case,  without  reference 
to  the  statute,  against  a  railway  company  for  not  delivering  grain 


310  EAILEOADS,  WAREHOUSES, 

shipped  in  bulk  to  a  particular  warehouse,  the  true  measure  of  dam- 
ages is  the  necessary  cost  of  moving  the  cars  to  the  place  required.  If 
the  suit  is  under  the  statute,  the  depreciation  in  the  price  of  the  grain 
may  be  considered.  C.  &  N.  W.  Ry.  v.  Stanbro,  87  111.  195. 

2616.  Statute  being  penal  will  not  be  extended  by  construction.    C. 
&  N.  W.  Ry.  v.  Stanbro,  87  111.  195. 

2617.  A  railroad  corporation  will  only  be  compelled  to  deliver 
grain  in  the  particular  warehouse  or  elevator  to  which  it  is  consigned, 
when  such  warehouse  or  elevator  is  upon  the  line  of  its  road.    But  the 
line  of  the  road  is  not  necessarily  confined  to  such  tracks,  side  tracks 
and  switches  by  it  owned  or  leased.    Hoyt  v.  C.,  B.  &  Q.  R.  R.,  93  111. 
601. 

2618.  If  a  railway  corporation  has  already  purchased  or  secured  by 
contract  or  otherwise,  the  legal  right  to  use  the  track  of  another  road 
necessary  to  reach  a  particular  warehouse  or  elevator,  then  such  ware- 
house or  elevator  may  be  considered  as  being  upon  the  line.    But 
when  it  has  to  run  over  the  track  of  another  company  for  the  use  of 
which  it  has  no  license  or  contract,  to  reach  such  warehouse  or  eleva- 
tor, it  cannot  be  compelled  to  run  over  such  track  in  order  to  deliver 
grain.    Ib. 

2619.  The  mandate  of  the  constitution  in  respect  to  the  delivery  of 
grain  shipped  in  bulk,  at  the  warehouse  or  elevator  to  which  it  is  con- 
signed, must  be  understood  to  be  confined  to  a  delivery  by  the  com- 
mon carrier  at  the  warehouse  or  elevator  where  consigned  when  such 
delivery  can  be  made  by  availing  itself  of  tracks  it  has  the  legal  right 
to  employ  or  use.    Hoyt  v.  C.,  B.  &  Q.  R.  R.,  93  111.  601. 

2620.  Eight  to  enjoin  removal  of  a  connecting  side 'track.    Hoyt  v. 
<7.,  B.  &  Q.  R.  R.,  93  111.  601. 

2621.  Where  a  company  takes  grain  consigned  to  Chicago,  its  duty 
is  to  deliver  it  in  Chicago  at  any  warehouse  upon  its  lines  or  side 
tracks,  to  which  it  has  been  consigned.    Vincent  v.  C.  &  A.  R.  R.  49 
111.  33. 

2622.  EIGHT  TO  CHANGE  CONSIGNMENT.  §4  All  consign- 
ments of  grain  to  any  elevator  or  public  warehouse  shall  be 
held  to  be  temporary,  and  subject  to  change  by  the  consignee 
or  consignor  at  any  time  previous  to  the  actual  unloading  of 
such  property  from  the  cars  in  which  it  is  transported. 
Notice  of  any  change  in  consignment  may  be  served  by  the 
consignee  on  any  agent  of  the  railroad  corporation  having 
the  property  in  possession  who  may  be  in  charge  of  the  busi- 
ness of  such  corporation  at  the  point  where  such  property  is 
to  be  delivered ;  and  if,  after  such  notice,  and  while  the  same 
remains  uncanceled,  such  property  is  delivered  in  any  way 
different  from  such  altered  or  changed  consignment,  such 
railroad  corporation  shall,  at  the  election  of  the  consignee  or 
person  entitled  to  control  such  property,  be  deemed  to  have 
illegally  appropriated  such  property  to  its  own  use,  and  shall 
be  liable  to  pay  the  owner  or  consignee  of  such  property 
double  the  value  of  the  property  so  appropriated;  and  no 
extra  charge  shall  be  permitted  by  the  corporation  having 
the  custody  of  such  property,  in  consequence  of  such  change 
of  consignment.  [B.  8.  1887,  p  1023,  §  121;  S.  &.  C.,  p 
1955,  §  121;  Cothran,  p.  1166,  §  107.] 


AND  EMINENT  DOMAIN.  311 

2623.  KECEIVING  ON  TRACK — RIGHTS  OF  OWNERS  SAVED. 
§  5.  Any  consignee  or  person  entitled  to  receive  the  delivery 
of  grain  transported  in  bulk  by  any  railroad,  shall  have 
twenty-four  hours,  free   of  expense,  after  actual  notice  of 
arrival  by  the  corporation  to  the  consignee,  in  which  to  re-^ 
move  the  same  from  the  cars  of  such  railroad  corporation,  if 
he  shall  desire  to  receive  it  from  the  cars  on  the  track;  which 
twenty-four  hours  shall  be  held  to  embrace  such  time  as  the 
car  containing  such  property  is  placed  and  kept  by  such  cor- 
poration in  a  convenient  and  proper  place   for  unloading. 
And  it  shall  not  be  held  to  have  been  placed  in  a  proper  place 
for  unloading,  unless  it  can  be  reached  by  the  consignee,  or 
person  entitled  to  receive  it,  with  teams  or  other  suitable 
means  for  removing  the  property  from  the  car,  and  reasona- 
bly convenient  to  the  depot  of  such  railroad  corporation  at 
which  it  is  accustomed  to  receive  and  unload  merchandise 
consigned  to  that  stktion  or  place.     Nothing  herein  contained, 
however,  shall  be  held  to  authorize  the  changing  of  any  con- 
signment of  grain,  except  as  to  the  place  at  which  it  is  to  be 
delivered  or  unloaded,  nor  shall  such  change  of  consignment, 
in  any  degree,  affect  the  ownership  or  control  of  property  in 
any  other  way.     [K  S.  1887,  p.  1023,  §  122;  S.  &  C.,  p.  1955, 
§  123;  Cothran,  p.  1167,  §  108.  J 

2624.  KECEIPT  AND  DELIVERY  AT  CROSSINGS,  ETC.    §  6. 
Every  railroad  corporation  organized  or  doing  business  under 
the  laws  of  this  state,  or  authority  thereof,  shall  receive  and 
deliver  all  grain  consigned  to  its  care  for  transportion  at  the 
crossings  and  junctions  of  all  other  railroads,  canals,  and  nav- 
igable rivers.     Any  violation  of  this  section  shall  render  any 
such  railroad  corporation  subject  to  the  same  penalty  as  con- 
tained in  section  3  of  this  act.     [§  7,  repeal,  omitted.     See 
"Statutes,"  ch.  131,  §  5.     E.  S.  1887,  p.  1023,  §  123;  S.  &  C., 
p.  1955,  §  124;  Cothran,  p.  1167,  §  109.] 

RAILROAD  AND   WAREHOUSE   COMMISSIONERS. 


171.] 

2625.  APPOINTMENT —TERM.  §  1.  Be  it  enacted  by  the 
people  of  the  state  of  Illinois,  represented  in  the  general  as- 
sembly, That  a  commission  which  shall  be  styled  "Railroad 
and  Warehouse  Commission,"  shall  be  appointed  as  follows: 
Within  twenty  days  after  this  act  shall  take  effect,  the  gov- 
ernor shall  appoint  three  persons  as  such  commissioners, 
who  shall  hold  their  office  until  the  next  meeting  of  the  gen- 
eral assembly,  and  until  their  successors  are  appointed  and 
qualified.  At  the  next  meeting  of  the  general  assembly,  and 
every  two  years  thereafter,  the  governor,  by  and  with  the 


312  KAILBOADS,  WAREHOUSES, 

advice  and  consent  of  the  senate,  shall  appoint  three  persons 
as  such  commissioners,  who  shall  hold  their  offices  for  the 
term  of  two  years  from  the  first  day  of  January  in  the  year 
of  their  appointment,  and  until  their  successors  are  appointed 
and  qualified. 

2626.  QUALIFICATIONS.     §  2.   No  person  shall  be  ap- 
pointed  as  such  commissioner  who  is  at  the  time   of  his 
appointment  in  any  way  connected  with  any  railroad  com- 
pany or  warehouse,  or  who  is  directly  or  indirectly  interested 
in  any  stock,  bond,  or  other  property  of,  or  is  in  the  employ- 
ment of  any  railroad  company  or  warehouseman ;  and  no  per- 
son appointed  as  such  commissioner  shall,  during  the  term 
of  his  office,  become  interested  in  any  stock,  bond  or  other 
property  of  any  railroad  company  or  warehouse,  or  in  any 
manner  be  employed  by  or  connected  with  any  railroad  com- 
pany or  warehouse.     The  governor  shall  have  power  to  re- 
move any  such  commissioner  at  any  time,  in  his  discretion. 

2627.  OATH — BOND.      §  3.    Before    entering    upon  the 
duties  of  his  office,  each  of  the  said  commissioners  shall 
make  and  subscribe,  and  file  with  the  secretary  of  state,  an 
affidavit,  in  the  following  form : 

I  do  solemnly  swear  (or  affirm,  as  the  case  may  be,)  that  I  will  support  the  constitu- 
tion of  the  United  States,  and  the  constitution  of  the  state  of  Illinois,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of  commissioner  of  railroads  and  warehouses, 
according  to  the  best  of  my  ability. 

And  shall  enter  into  bonds,  with  security  to  be  approved 
by  the  governor,  in  the  sum  of  $20,000,  conditioned  for  the 
faithful  performance  of  his  duty  as  such  commissioner. 

2628.  COMPENSATION — SECRETARY  —  OFFICE  —  EXPENSES. 
§  4.     Each  of  said  commissioners  shall  receive  for  his  serv- 
ices a  sum  not  exceeding  $3,500  per  annum,  payable  quar- 
terly.    They  shall  be  furnished  with  an  office,  office  furni- 
ture and  stationery,  at  the  expense  of  the  state,  and  shall 
have  power  to  appoint  a  secretary  to  perform  such  duties  as 
they  shall  assign  to  him.    Said  secretary  shall  receive  for  his 
services  a  sum  not  exceeding  $1,500  per  annum.     The  office 
of  the  said  commissioners  shall  be  kept  at  Springfield,  and 
all  sums  authorized  to  be  paid  by  this  act  shall  be  paid  out 
of  the  state  treasury  and  only  on  the  order  of  the  governor: 
Provided,  that  the  total  sum  to  be  expended  by  said  commis- 
sioners for  office  rent  and  furniture  and  stationery  shall,  in 
no  case,  exceed  the  total  sum  of  $800  per  annum. 

2629.  EIGHT  TO  PASS  ON  TRAINS,  ETC.    §  5.  The  said 
commissioners  shall  have  the  right  of  passing,  in  the  per- 
formance of  their  duties  concerning  railroads,  on  all  rail- 
roads and  railroad  trains  in  this  state. 

2630.  EEPORT  OF  RAILROADS.     §  6.  Every  railroad  com- 
pany incorporated  or  doing  business  in  this  state,  or  which 


AND  EMINENT  DOMAIN.  313 

shall  hereafter  become  incorporated,  or  do  business  under 
any  general  or  special  law  of  this  state,  shall,  on  or  before 
the  first  day  of  September,  in  the  year  of  our  Lord  1871,  and 
on  or  before  the  same  day  in  each  year  thereafter,  make  and 
transmit  to  the  commissioners  appointed  by  virtue  of  this 
act,  at  their  office  in  Springfield,  a  full  and  true  statement, 
under  oath  of  the  proper  officers  of  said  corporation,  of  the 
affairs  of  their  said  corporation,  as  the  same  existed  on  the 
first  day  of  the  preceding  July,  specifying — 

First — The  amount  of  capital  stock  subscribed,  and  by 
whom. 

Second — The  names  of  the  owners  of  its  stock,  and  the 
amounts  owned  by  them  respectively,  and  the  residence  of 
each  stockholder  as  far  as  known. 

Third — The  amount  of  stock  paid  in,  and  by  whom. 

Fourth — The  amount  of  its  assets  and  liabilities. 

Fifth — The  names  and  place  of  residence  of  its  officers. 

Sixth — The  amount  of  cash  paid  to  the  company  on  account 
of  the  original  capital  stock. 

Seventh — The  amount  of  funded  debt. 

Eighth — The  amount  of  floating  debt. 

Ninth — The  estimated  value  of  the  roadbed,  including  iron 
and  bridges. 

Tenth — The  estimated  value  of  rolling  stock. 

Eleventh — The  estimated  value  of  stations,  buildings  and 
fixtures. 

Twelfth — The  estimated  value  of  other  property. 

Thirteenth — The  length  of  single  main  track. 

Fourteenth — The  length  of  double  main  track. 

Fifteenth — The  length  of  branches,  stating  whether  they 
have  single  or  double  track. 

Sixteenth — The  aggregate  length  of  siding  and  other  tracks 
not  above  enumerated. 

Seventeenth — The  number  of  miles  run  by  passenger  trains 
during  the  year  preceding  the  making  of  the  report. 

Eighteenth — The  number  of  miles  run  by  freight  trains 
during  the  same  period. 

Nineteenth — The  number  of  tons  of  through  freight  carried 
during  the  same  time. 

Twentieth — The  number  of  tons  of  local  freight  carried 
during  the  same  time. 

Twenty-first — Its  monthly  earnings  for  the  transportation 
of  passengers  during  the  same  time. 

Twenty -second — Its  monthly  earnings  for  the  transporta- 
tion of  freight  during  the  same  time. 

Twenty-third — Its  monthly  earnings  from  all  other  sources 
respectively. 

Twenty-fourth — The  amount  of  expense  incurred  in  the 


314  RAILROADS,  WAREHOUSES, 

running  and  management  of  passenger  trains  during  the  same 
time. 

Twenty-fifth — The  amount  of  expense  incurred  in  the  run- 
ning and  management  of  freight  trains  during  the  same  time ; 
also,  the  amount  of  expense  incurred  in  the  running  and 
management  of  mixed  trains  during  the  same  time. 

Twenty-sixth — All  other  expenses  incurred  in  the  running 
and  management  of  the  road  during  the  same  time,  includ- 
ing the  salaries  of  officers,  which  shall  be  reported  separately. 

Twenty-seventh — The  amount  expended  for  repairs  of  road 
and  maintenance  of  way,  including  repairs  and  renewal  of 
bridges  and  renewal  of  iron. 

Twenty-eighth — The  amount  expended  for  improvement, 
and  whether  the  same  are  estimated  as  a  part  of  the  expenses 
of  operating  or  repairing  the  road,  and,  if  either,  which. 

Twenty-ninth — The  amount  expended  for  motive  power  and 
cars. 

Thirtieth — The  amount  expended  for  station  houses,  build- 
ings and  fixtures. 

Thirty-jirst — All  other  expenses  for  the  maintenance  of 
way. 

Thirty -second — All  other  expenditures,  either  for  manage- 
ment of  the  road,  maintenance  of  way,  motive  power  and 
cars,  or  for  other  purposes. 

Thirty-third — The  rate  of  fare  for  passengers  for  each 
month  during  the  same  time,  through  and  way  passengers 
separately. 

Thirty-fourth — The  tariff  of  freights,  showing  each  change 
of  tariff  during  the  same  time. 

Thirty-fifth — A  copy  of  each  published  rate  of  fare  for 
passengers  and  tariff  of  freight,  in  force  or  issued  for  the 
government  of  its  agents  during  the  same  time. 

Thirty-sixth — Whether  the  rate  of  fare  and  tariff  of  freight 
in  such  published  lists  are  the  same  as  those  actually  re- 
ceived by  the  company  during  the  same  time ;  if  not,  what 
were  received. 

Thirty-seventh — What  express  companies  run  on  its  roads 
and  on  what  terms  and  on  what  conditions;  the  kind  of  busi- 
ness done  by  them,  and  whether  they  take  their  freights  at 
the  depots  or  at  the  office  of  such  express  companies. 

Thirty-  eighth — What  freight  and  transportation  companies 
run  on  its  road,  and  on  what  terms. 

Thirty-ninth — Whether  such  freight  and  transportation 
companies  use  the  cars  of  the  railroad  or  the  cars  furnished 
by  themselves. 

Fortieth — Whether  the  freight  or  cars  of  such  companies 
are  given  any  preference  in  speed  or  order  of  transporation, 
and  if  so,  in  what  particular. 


AND  EMINENT  DOMAIN.  315 

Forty-first — What  running  arrangements  it  has  with  other 
railroad  companies,  setting  forth  the  contracts  for  the  same. 

2631.  ADDITIONAL  INQUIRIES.    §7.  The  said  commission- 
ers may  make  and  propound  to  such  railroad  companies  any 
additional  interrogatories,  which  shall  be  answered  by  such 
companies  in  the  same  manner  as  those  specified  in  the  fore- 
going section. 

2632.  APPLIES  TO  OFFICERS  OF  ROAD.     §8.   Sections  6 
and  7  of  this  act  shall  apply  to  the  president,  directors  and 
officers  of   every   railroad  company  now  existing  or  which 
shall  be  incorporated  or  organized  in  this  state,  and  to  every 
lessee,  manager  and  operator  of   any  railroad  within   this 
state. 

2633.  STATEMENT  BY  WAREHOUSEMAN.    §  9.  It  shall  be 
the  duty  of  every  owner,  lessee  and  manager  of  every  public 
warehouse  in  this  state  to  furnish  in  writing  under  oath,  at 
such  times  as  such  railroad  and  warehouse  commissioners 
shall  require  and  prescribe,  a  statement  concerning  the  con- 
dition and  management  of  his  business  as  such  warehouse- 
man. 

2634.  REPORT  BY  COMMISSIONERS — EXAMINATION.    §  10. 
Such  commissioners  shall,   on   or   before  the   first    day   of 
December,  in  each  year,  and  oftener  if  required  by  the  gov- 
ernor to  do  so,  make  a  report  to  the  governor  of  their  doings 
for  the  preceding  year,  containing  such  facts,  statements  and 
explanations  as  will  disclose  the  actual  workings  of  the  sys- 
tem of  railroad  transportation  and  warehouse  business  in 
their  bearings  upon  the  business  and  prosperity  of  the  peo- 
ple of  this  state,  and  such  suggestions  in  relation  thereto  as 
to    them    may    seem    appropriate,    and  particularly,   first, 
whether  in  their  judgment  the  railroads  can  be  classified  in 
regard  to  the  rate  of  fare  and  freight  to  be  charged  upon 
them,  and  if  so,  in  what  manner;  second,  whether  a  classifica- 
tion of  freight  can  also  be  made,  and  if  so,  in  what  manner. 
They  shall  also,  at  such  times  as  the  governor  shall  direct, 
examine  any  particular  subject  connected  with  the  condition 
and  management  of  such  railroads  and  warehouses,  and  re- 
port to  him  in  writing  their  opinion  thereon  with  their  rea- 
sons therefor. 

2635.  EXAMINATIONS  OF  RAILROADS  AND  WAREHOUSES- 
SUITS.     §  11.  Said  commissioners  shall  examine  into  the  con- 
dition and  management,  and  all  other  matters  concerning  the 
business  of  railroads  and  warehouses  in  this  state,  so  far  as 
the  same  pertain  to  the  relation  of  such  roads  and  warehouses 
to  the  public,  and  to  the  accommodation  and  security  of  per- 
sons  doing  business  therewith;  and  whether  such  railroad 
companies  and  warehouses,  their  officers,  directors,  managers, 


316  RAILROADS,  WAREHOUSES, 

lessees,  agents  and  employes,  comply  with  the  laws  of  this 
state  now  in  force,  or  which  shall  hereafter  be  in  force  con- 
cerning them.  And  whenever  it  shall  come  to  their  knowledge, 
either  upon  complaint  or  otherwise,  or  they  shall  have  reason 
to  believe  that  any  such  law  or  laws  have  been  or  are  being 
violated,  they  shall  prosecute  or  cause  to  be  prosecuted  all 
corporations  or  persons  guilty  of  such  violation.  'In  order  to 
enable  said  commissioners  efficiently  to  perform  their  duties 
under  this  act,  it  is  hereby  made  their  duty  to  cause  one  of 
their  number,  at  least  once  in  six  months,  to  visit  each  county 
in  the  state,  in  which  is  or  shall  be  located  a  railroad  station, 
and  personally  inquire  into  the  management  of  such  railroad 
and  warehouse  business. 

2636i    WHEN  BOARD  TO  INVESTIGATE  CAUSE  or  ACCIDENT 

ON  RAILROAD — BRIDGE,  ETC.,  OUT  OF  REPAIR — MANDAMUS — 
PROCEEDINGS  BY  ATTORNEY  GENERAL.  §  11^.  It  shall  be  the 

duty  of  said  board  of  commissioners  to  investigate  the  cause 
of  any  accident  on  any  railroad  resulting  in  the  loss  of  life  or 
injury  to  person  or  persons,  which  in  their  judgment  shall 
require  investigation,  and  the  result  of  such  investigation 
shall  be  reported  upon  in  a  special  report  to  the  governor  as 
soon  after  said  accident  as  may  be  practicable,  and  also  in  the 
annual  report  of  said  commissioners.  And  it  is  hereby 
made  the  duty  of  the  general  superintendent  or  manager  of 
each  railroad  in  this  state,  to  inform  said  board  of  any  such 
accident  immediately  after  its  occurrence.  Whenever  it  shall 
come  to  the  knowledge  of  said  board,  by  complaint  or  other- 
wise, that  any  railroad  bridge  or  trestle,  or  any  portion  of 
the  track  of  any  railroad  in  this  state  is  out  of  repair,  or  is 
in  an  unsafe  condition,  it  shall  be  the  duty  of  such  board  to 
investigate,  or  cause  an  investigation  to  be  made,  of  the  con- 
dition of  such  railroad  bridge,  trestle  or  track  and  may 
employ  such  person  or  persons  who  may  be  civil  engineer  or 
engineers,  as  they  shall  deem  necessary  for  the  purpose  of 
making  such  investigation,  and  whenever  in  the  judgment  of 
said  board,  after  such  investigation,  it  shall  become  neces- 
sary to  rebuild  such  bridge,  track  or  trestle,  or  repair  the 
same,  the  said  board  shall  give  notice  and  information  in 
writing  to  the  corporation  of  the  improvements  and  changes 
which  they  deem  to  be  proper.  And  shall  recommend  to  the 
corporation  or  person  or  persons  owning  or  operating  such 
railroad  that  it,  or  he,  or  they,  make  such  repairs,  changes  or 
improvements,  or  rebuild -such  bridge  or  bridges  on  such 
railroad  as  the  board  shall  deem  necessary,  to  the  safety  of 
persons  being  transported  thereon.  And  said  board  shall 
give  such  corporation  or  person  or  persons  owning  or  operat- 
ing said  railroad  an  opportunity  for  a  full  and  fair  hearing 
on  the  subject  of  such  investigation  and  recommendation. 


AND  EMINENT  DOMAIN.  317 

And  said  board  shall,  after  having  given  said  corporation  or 
person  or  persons  operating  such  railroad  an  opportunity  for 
a  full  hearing  thereon,  if  such  corporation  or  person  shall 
not  satisfy  said  board  that  no  action  is  required  to  be  taken 
by  it  or  them,  fix  a  time  within  which  such  changes  or  repairs 
shall  be  made,  or  such  bridges,  tracks  or  culverts  shall  be 
rebuilt,  which  time  the  board  may  extend.  It  shall  be  the 
duty  of  the  corporation,  person  or  persons  owning  or  operat- 
ing said  railroad  to  comply  with  such  recommendations  of 
said  board,  as  are  just  and  reasonable.  •  And  the  supreme 
court  or  the  circuit  court  in  any  circuit,  in  which  such  rail- 
road may  be  in  part  situated,  shall  have  power  in  all  cases 
of  such  recommendations  by  said  board,  to  compel  compli- 
ance therewith  by  mandamus.  If  any  such  corporation  or 
person  or  persons  owning  or  operating  any  such  railroad, 
shall,  after  such  hearing,  neglect  or  refuse  to  comply  with 
the  recommendation  or  recommendations  of  said  board  as  to 
making  any  repairs,  changes  or  improvements,  on  any  bridge, 
track  or  trestle,  or  to  rebuild  any  bridge  within  the  time 
which  shall  be  fixed  by  said  board  therefor,  said  board  shall 
report  such  neglect  or  refusal,  together  with  the  facts  in  such 
case  as  said  board  shall  find  the  facts  to  be,  touching  the 
necessity  for  such  repairs,  changes  or  rebuilding  to  the  attor- 
ney general  of  the  state  of  Illinois,  who  shall  thereupon  take 
such  action  as  may  be  necessary  to  secure  compliance  with 
such  recommendations  of  said  board.  In  all  actions  or  pro- 
ceedings brought  by  the  attorney  general  to  compel  compli- 
ance with  the  recommendations  of  the  board,  the  findings  of 
the  board  shall  be  prima  facie  evidence  of  the  facts  therein 
stated,  and  the  recommendations  of  the  board  shall  be  deemed 
prima  facie,  just  and  reasonable.  Nothing  herein  contained 
shall  impair  the  legal  liability  of  any  railroad  company  for 
the  consequence  of  its  acts.  And  all  existing  remedies  there- 
for are  hereby  saved  to  the  people  and  ,to  individuals. 
[Added  by  act  approved  June  16,  1887.  In  force  July  1, 
1887.  L.  1887,  p.  255.] 

2637.  CANCELLATION  OP  WAREHOUSE  LICENSES.  §  12.  Said 
commissioners  are  hereby  authorized  to  hear  and  determine 
all  applications  for  the  cancellation  of  warehouse  licenses  in 
this  state  which  may  be  issued  in  pursuance  of  any  laws  of 
this  state,  and  for  that  purpose  to  make  and  adopt  such 
rules  and  regulations  concerning  such  hearing  and  determi- 
nation as  may,  from  time  to  time,  by  them  be  deemed  proper. 
And  if,  upon  such  hearing,  it  shall  appear  that  any  public 
warehouseman  has  been  guilty  of  violating  any  law  of  this 
state  concerning  the  business  of  public  warehousemen,  said 
commissioners  may  cancel  and  revoke  the  license  of  said 
public  warehouseman,  and  immediately  notify  the  officer  who 


318  BAILROADS,  WAREHOUSES, 

issued  such  license  of  such  revocation  and  cancellation;  and 
no  person  whose  license  as  a  public  warehouseman  shall  be 
cancelled  or  revoked,  shall  be  entitled  to  another  license  or 
to  carry  on  the  business  in  this  state  of  such  public  ware- 
houseman, until  the  expiration  of  six  months  from  the  date 
of  such  revocation  and  cancellation,  and  until  he  shall  have 
again  been  licensed:  Provided,  that  this  section  shall  not 
be  so  construed  as  to  prevent  any  such  warehouseman  from 
delivering  any  grain  on  hand  at  the  time  of  such  revocation 
or  cancellation  of  his  said  license.  And  all  licenses  issued 
in  violation  of  the  provisions  of  this  section  shall  be  deemed 
null  and  void. 

2638.  POWER  TO  EXAMINE  BOOKS,  ETC.     §  13.  The  prop- 
erty, books,  records,  accounts,  papers  and  proceedings  of  all 
such  railroad  companies,  and  all  public  warehousemen,  shall 
at  all  times,  during  business  hours,  be  subject  to  the  exami- 
nation and  inspection  of  such  commissioners,  and  they  shall 
have  power  to  examine,  under  oath  or  affirmation,  any  and 
all  directors,  officers,  managers,  agents  and  employes  of  any 
such  railroad  corporation,  and  any  and  all  owners,  managers, 
lessees,  agents  and  employes  of  such  public  warehouses  and 
other  persons,  concerning  any  matter  relating  to  the  condi- 
tion and  mangement  of  such  business. 

2639.  MAY  EXAMINE  WITNESSES,  ETC.     §  14.  In  making 
any  examination  as  contemplated  in  this  act,  or  for  the  pur- 
pose of  obtaining  information,  pursuant  to  this  act,  said 
commissioners  shall  have  the  power  to  issue  subpoenas  for 
the  attendance  of  witnesses,  and  may  administer  oaths.     In 
case  any  person  shall  willfully  fail  or  refuse  to  obey  such 
subpoena,  it  shall  be  the  duty  of  the  circuit  court  of  any 
county,  upon  application  of  said  commissioners,  to  issue  an 
attachment  for   such  witness,    and  compel  such  witness  to 
attend  before  the  commissioners,  and   give  his  testimony 
upon  such  matters  as  shall  be  lawfully  required  by  such 
commissioners;  and  the  said  court  shall  have  power  to  pun- 
ish for  contempt,  as  in  other  cases  of  refusal  to  obey  the 
process  and  order  of  such  court. 

2640.  PENALTY  AGAINST  WITNESSES.     §  15.  Any  person 
who  shall  willfully  neglect  or  refuse  to  obey  the  process  of 
subpoena  issued  by  said  commissioners,  and  appear  and  tes- 
tify as  therein  required,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  liable  to  an  indictment  in  any  court  of 
competent  jurisdiction,  and  on  conviction  thereof  shall  be 
punished  for  each  offense,  by  a  fine  of  not  less  than  25  nor 
more  than  $500,  or  by  imprisonment  of  not  more  thirty  days, 
or  both,  in  the  discretion  of  the  court  before  which  such  con- 
viction shall  be  had. 


AND  EMINENT  DOMAIN.  319 

2641.  PENALTY    AGAINST    RAILROAD    COMPANIES,  WARE- 
HOUSEMEN, ETC.     §  16.  Every  railroad  company,  and  every 
officer,    agent  or   employe  of    any  railroad   company,    and 
every  owner,  lessee,  manager  or  employe  of  any  warehouse, 
who  shall  willfully  neglect  to  make  and  furnish  any  report 
required  in  this  act,  at  the  time  herein  required,  or  who 
shall   willfully    and   unlawfully    hinder,   delay,  or   obstruct 
said  commissioners  in  the  discharge  of  the   duties  hereby 
imposed  upon   them,   shall  forfeit   and  pay   a   sum   of  not 
less  than  100  nor  more  than  $5,000  for  each  offense,  to  be 
recovered  in  an  action  of  debt  in  the  name  and  for  the  use 
of  the   people   of  the  state   of  Illinois;  and   every  railroad 
company,  and  every  officer,  agent  or  employe  of  any  such 
railroad  company,  and  every  owner,  lessee,  manager,  or  agent 
or  employe  of  any  public  warehouse,  shall  be  liable  to  a  like 
penalty  for  every  period  of  ten  days  it  or  he  shall  willfully 
neglect  or  refuse  to  make  such  report. 

2642.  ATTORNEY  GENERAL  AND    STATE'S  ATTORNEY    TO 
PROSECUTE  SUITS.     §  17.  It  'shall  be  the  duty  of  the  attorney 
general,  and  the  state's  attorney  in  every  circuit  or  county, 
on  the  request  of  said  commissioners,  to  institute  and  prose- 
cute any  and  all  suits  and  proceedings  which  they,  or  either 
of  them,  shall  be  directed  by  said  commissioners  to  institute 
and  prosecute  for  a  violation  of  this  act,  or  any  law  of  this 
state   concerning  railroad  companies  or  warehouses,  or  the 
officers,  employes,  owners,  operators  or  agents  of  any  such 
companies  or  warehouses. 

2643.  IN  NAME  OF  PEOPLE— PAY — QUI  TAM  ACTIONS.     §18. 

All  such  prosecution  shall  be  in  the  name  of  the  people  of 
the  state  of  Illinois,  and  all  moneys  arising  therefrom  shall 
be  paid  into  the  state  treasury  by  the  sheriff  or  other  officer 
collecting  the  same;  and  the  state's  attorney  shall  be  entitled 
to  receive  for  his  compensation,  from  the  state  treasury,  on 
bills  to  be  approved  by  the  governor,  a  sum  not  exceeding 
ten  per  cent,  of  the  amount  received  and  paid  into  the  state 
treasury  as  aforesaid:  Provided,  this  act  shall  not  be  con- 
strued so  as  to  prevent  any  person  from  prosecuting  any  qui 
tarn  action  as  authorized  by  law,  and  of  receiving  such  part 
of  the  amount  recovered  in  such  action  as  is  or  may  be  pro- 
vided under  any  law  of  this  state. 

2644.  EIGHTS  OF  INDIVIDUALS  SAVED.      §  19.  This   act 
shall  not  be  so  construed  as  to  waive  or  affect  the  right  of 
any  person,  injured  by  the  violation  of  any  law  in  regard  to 
railroad  companies  or  warehouses,  from  prosecuting  for  his 
private  damages  in  any  manner  allowed  by  law. 


320  EAILROADS,  WAREHOUSES, 


EXTORTION  AND  UNJUST  DISCRIMINATION. 

An  act  to  prevent  extortion  and  unjust  discrimination  in  the  rates  charged  for  the 
transportation  of  passengers  and  freights  on  railroads  in  this  state  and  to  punish  the 
same,  and  prescribe  a  mode  of  procedure  and  rules  of  evidence  in  relation  thereto,  and 
to  repeal  an  act  entitled  "An  act  to  prevent  unjust  discriminations  and  extortions  in  the 
rates  to  be  charged  by  the  different  railroads  in  this  state  for  the  transportation  of 
freights  on  said  roads,"  approved  April  7,  A.  D.  1871.  Approved  May  2,  1873.  In  force 
July  1,  1873.  [R.  S.  1887,  p.  1024,  §§  124-133;  S.  &  C.,  p.  1961,  §§  145-155:  Cothran,  p.  1167, 
§§  110,-119.  See  ante,  94-97.] 

2645.  EXTORTION.  §  1.  Be  it  enacted  by  the  people 
of  the  state  of  Illinois,  represented  in  the  general  assembly: 
If  any  railroad  corporation,  organized  or  doing  business  in 
this  state  under  any  act  of  incorporation,  or  general  law  of 
this  state,  now  in  force  or  which  may  hereafter  be  enacted, 
or  any  railroad  corporation  organized  or  which  may  here- 
after be  organized  under  the  laws  of  any  other  state,  and  do- 
ing business  in  this  state,  shall  charge,  collect,  demand  or 
receive  more  than  a  fair  and  reasonable  rate  of  toll  or  com- 
pensation, for  the  transportation  of  passengers  or  freight,  of 
any  description,  or  for  the  use  and  transportation  of  any 
railroad  car  upon  its  track,  or  any  of  the  branches  thereof 
or  upon  any  railroad  within  this  state  which  it  has  the  right, 
license  or  permission  to  use,  operate  or  control,  the  same 
shall  be  deemed  guilty  of  extortion,  and  upon  conviction 
thereof  shall  be  dealt  with  as  hereinafter  provided.  See 
Const.,  art.  11,  §  15;  ante,  94-98. 

2646.  CONSTITUTIONAL  POWER  or  STATE  TO  REGULATE  CHARGES- 
FEDERAL  CONSTITUTION.    The  act  against  extortion  and  unjust  dis- 
crimination is  not  in  violation  of  the  federal  constitution.    Railroad 
Co.  v.  Fuller,  17  Wall.  560;  C.,  B.  &  Q.  R.  R.  v.  Iowa,  4  Otto,  155;  Peik 
v.  Ch.  &  N.  W.  Ry.,  4  Otto,  164;   Munn  v.  Illinois,  4  Otto,  114;  Oh., 
&c.,  R.  R.  v.  Ackley,  4  Otto,  179;  W.,  St.  L.  &  P.  Ry.  v.  Blake,  4  Otto, 
180;  Stone  v.  Wisconsin,  4  Otto,  181. 

2647.  POWER  of  state  to  regulate  and  fix  charges  for  freight  and 
passage.    B.  &  O.  R.  R.  v.  Maryland,  21  Wall.  456;  Peik  v.  Ch.  &  N. 
W.  Ry.,  94  U.  S.  164;  6  Biss.  177;  Ruggles  v.  People,  91  111.  256;  108  U. 
S.  256;  C.  &  A.  R.  R.  v.  People,  67  111.  11;  Parker  v.  Metropolitan  R. 
R.,  109  Mass.  506;  Ackley  v.  C.,  M.  &  St.  P.  Ry.,3Q  Wis.  252;  4  Otto, 
179. 

2648.  RIGHTS  IN  CHARTER.   A  provision  in  a  railway  charter  that 
the  company  may  fix  its  rates  of  tolls,  &c.,  does  not  prevent  the  regu- 
lation of  rates  by  the  state.  Ruggles  v.  Illinois,  108  U.  S.  526;  1.  C.  R. 
R.  v.  People,  108  U.  S.  541. 

2649.  The  act  of  1871  to  establish  a  reasonable  maximum  rate  of 
charges  is  not  unconstitutional,  but  is  a  valid  law.    Ruggles  v.  Peo- 
ple, 91  111.  256. 

2650.  The  act  of  May  2, 1873,  to  prevent  extortion  arid  unjust  dis- 
crimination in  railroads,  is  a  constitutional  enactment,  and  is  not 
violative  of  the  contract  between  the  state  and  the  railway  corpora- 
tions growing  out  of  the  grant  and  acceptance  of  their  charters,  giving 
them  power  to  establish  such  rates  of  toll  as  they  might  from  time  to 
time  determine  in  their  by-laws.    /.  C.  R.  R.  v  People,  95  111.  313. 

2651.  COMMON  LAW  POWER — not  affected  by  charter.    The  rule 
forbidding  unreasonable  charges  by  common  carriers  exists  at  the 


AND  EMINENT  DOMAIN.  321 

common  law,  and  charters  giving  railroad  companies  the  right  to 
establish  rates  of  freight,  &c.,  in  general  terms,  are  subject  to  the 
implied  condition  that  those  rates  shall  not  be  unreasonable.  C.  &  A . 
R.  R.  v.  People,  67  111.  18. 

2652.  CHARTERS  SUBJECT  TO  IMPLIED  LIMITATION.    The  "right 
to  fix  rates  of  tariff,"  &c.,  granted  by  a  charter,  must  be  construed  as 
being  with  an  implied  limitation  or  restriction  that  in  fixing  rates  of 
tariff,  the  company  shall  make  them  reasonable  and  not  extortionate, 
and  that  in  making  discriminations,  they  shall  be  reasonably  just. 
St.  L.,  A.  &T.H.R.R.  v.  Hill,  14  Bradw.  579. 

2653.  UNJUST  DISCRIMINATION.     §  2.  If  any  such  railroad 
corporation  aforesaid  shall  make  any  unjust  discrimination 
in  its  rates  or  charges  of  toll,  or  compensation,  for  the  trans- 
portation of  passengers  or  freight  of  any  description,  or  for 
the  use  and  transportation  of  any  railroad  car  upon  its  said 
road,  or  upon  any  of  the  branches  thereof,  or  upon  any  rail- 
roads connected  therewith,  which  it  has  the  right,  license  or 
permission  to  operate,  control  or  use,  within  this  state,  the 
same  shall  be  deemed  guilty  of  having  violated  the  provisions 
of  this  act,  and  upon  conviction  thereof  shall  be  dealt  with 
as  hereinafter  provided. 

CONSTITUTIONALITY. 

2654.  Legislation  to  prevent  unjust  discrimination  in  freights  is 
in  no  respect  a  violation  of  the  charters  of  railway  companies,  and  is 
constitutional.    C.  &  A.  R.  R.  v.  People,  67  111.  11. 

2655.  UNJUST  DISCRIMINATION.    §  15,  art.  11  of  the  constitution 
authorizing  the  passage  of  laws  to  correct  abuses  and  to  iprevent  un- 
just discrimination  and  extortion,  by  implication,  restrains  the  power 
of  the  legislature  to  the  prohibition  of  such  discrimination  only  as  is 
unjust.    Ib. 

2656.  An  act  of  the  legislature  prohibiting  any  and  all  discrimina- 
tion, whether  just  or  unjust,  and  which  does  not  permit  the  companies 
to  show  that  the  same  is  not  unjust,  but  infers  guilt  conclusively 
from  the  mere  fact  of  a  difference  in  rates,  is  unconstitutional  and 
void.    Ib . 

2657.  An  act  prohibiting  unjust  discrimination  in  charges,  making 
the  charging  of  a  greater  compensation  for  a  less  distance,  or  for  the 
same  distance,  prima  facie  evidence  of  unjust  discrimination,  and 
giving  a  trial  by  jury  as  to  the  facts,  is  within  the  constitutional  power 
of  the  legislature.    Ib. 

2658.  This  section  is  not  obnoxious  to  any  constitutional  objection, 
and  a  railway  company  will  be  liable  to  the  penalty  imposed  for  its 
violation  in  discriminating  in  the  rates  of  charges  as  to  different  con- 
tracts for  through  transportation  of  freight  from  points  in  this  state 
to  a  point  in  another  state  for  different  distances,  charging  a  greater 
sum  for  the  less  distance  of  the  entire  carriage  than  for  the  greater  dis- 
tance.    Wabash,  St.  L.  &  P.  Ry.  v.  People,  105  111.  236;  People  v.  W., 
St.  L.  &  P.  Ry.,  104  111.  476. 

265J).  There  is  nothing  in  the  section  or  act  which  confines  the 
unjust  discrimination  for  charges  for  the  transportation  o.f  property 
within  the  limits  of  the  state.  The  language  "within  this  state,"  in 
the  last  part  of  the  section,  has  reference  to  the  roads  which  a  railway 
company  may  operate  in  this  state.  Ib.  104  111.  476. 

—22 


322  EAILBOADS,  WAKEHOUSES, 

2660.  INTER-STATE  COMMERCE.    A  state  law  to  prevent  the  unjust 
discrimination  in  rates  for  the  transportation  of  passengers  or  freight 
from  a  point  within  to  a  point  without  the  state,  though  it  may  inci- 
dentally affect  commerce  between  states  cannot  be  said  to  be  a  law 
regulating  commerce  between  states  within  the  meaning  of  the  fed- 
eral constitution,  especially  when  it  does  not  purport  to  exercise 
control  over  any  railroad  corporation  except  those  that  run  or  operate 
in  the  state.    People  v.  W.,  St.  L.  &  P.  Ry.,  104  111.  476;  W.,  St.  L.  & 
P.  Ry.  v.  People,  105  111.  236. 

2661.  Statute  must  be  construed  to  include  a  transportation  of 
goods  under  one  contract  and  by  one  voyage  from  the  interior  of  the 
state  of  Illinois  to  New  York.     Wabash,  St.  L.  &  P.  Ry.  v.  Illinois, 
118  U.  S.  557. 

2662.  INTER-STATE  COMMERCE.    Such  a  transportation  is  "com- 
merce among  the  states,"  even  as  to  that  part  of  the  voyage  which  lies 
within  the  state  of  Illinois.    There  may  be  a  transportation  of  goods 
which  is  begun  and  ended  within  its  limits  and  disconnected  with 
any  carriage  outside  of  the  state,  which  is  not  commerce  among  the 
states.    Ib. 

2663.  The  latter  is  subject  to  regulation  by  the  state  and  this  stat- 
ute is  void  as  applied  to  it;  but  the  former  is  national  in  its  character, 
and  its  regulation  is  confided  to  congress  exclusively  by  that  clause  or 
the  federal  constitution  which  empowers  it  to  regulate  commerce 
among  the  states.    Ib. 

2664.  This  statute  is  void  as  to  that  part  of  the  transmission  of  the 
freight  which  may  be  within  the  state  where  the  contract  is  for  its 
carriage  beyond  the  limits  of  the  state.    Reversing  the  judgment  of 
the  state  court.    Ib. 

2664a.  Regulation  of  inter-state  commerce.  See  State  v.  Ch.  &  N. 
W.  Ry.,  70  Iowa  162;  Carton  &  Co.  v.  I.  C.  R.  R.,  59  Iowa  148;  Hart  v. 
Ch.  &  N.  W.  Ry.,  69  Iowa  485. 

2665.  POWER  OF  STATE  OVER.    The  legislature  has  the  undoubted 
power  under  the  constitution,  to  prohibit  unjust  discrimination  in 
charges  for  the  transportation  of  persons  and  freights  by  railroads, 
whether  between  individuals,  or  localities  or  communities.   /.  C.  R.  R. 
v.  People,  121  111.  304. 

CONSTRUCTION. 

2666.  EFFECT  ON  EXISTING  CONTRACTS.    This  act  was  not  design- 
ed to  reach  a  case  where  a  contract  existed  prior  to  its  passage,  to 
carry  on  certain  terms.    It  does  not  interfere  with  or  abrogate  pre- 
existing contracts.    C.  &  A.  R.  R.  v.  C.  V.  &  W.  Coal  Co.,  79  111.  121. 

2667.  This  section  is  not  limited  to  railroads  organized  under  the 
laws  of  this  state,  but  includes  all  railroad  companies  whieh  operate 
railroads  in  this  state.    People  v.  W.,  St.  L.  &  P.  Ry.,  104  111.  476. 

2668.  AT  COMMON  LAW.     Charges  for  freights  and  passengers 
must  be  uniform  without  favor  or  prejudice  of  the  several  classes 
established  by  the  company.    Extra  charges  may  be  made  in  case  of 
neglect  to  procure  tickets  when  an  opportunity  to  do  so  is  afforded. 
C.,  B.  &  Q.  R.  R.  v.  Parks,  18  111.  460. 

2669.  At  common  law  all  discriminations  by  common  carriers  are 
not  forbidden,  but  only  those  which  are  unreasonable  and  unjust. 
They  are  required  to  serve  all  who  properly  apply  for  transportation 
in  the  order  of  their  application.    The  authorities  differ  as  to  whether 
the  common  law  rule  requires  an  equality  of  charge.    The  weight  of 
American  authority  requires  that  the  charges  shall  be  equal  to  all  for 
the  same  service  under  like  circumstances.    St.  L.,  A.  &  T.  H.  R.  R.  v. 
Hill.  14  Bradw.  579. 


AND  EMINENT  DOMAIN.  323 

2670.  The  common  law  does  not  require,  where  there  is  a  differ- 
ence of  distances  in  the  services  performed,  that  the  charge  shall  be 
proportioned  equally  to  the  respective  distances;  or  that  where  the 
greater  charge  is  made  for  the  greater  distance,  it  shall  bear  any  given 
proportion  to  that  made  for  the  shorter  distance.    Ib. 

2671.  No  SHIPMENT.    The  statute  against  unjust  discrimination 
does  not  apply  to  a  case  where  no  shipment  is  made,  but  simply  a 
demand  for  illegal  freight  on  the  one  side  and  a  refusal  on  the  other 
to  ship.    Kankakee  Coal  Co.  v.  1.  C.  R.  R.,  17  Bradw.  614. 

2672.  GIVING  PREFERENCES.    Action  lies  for  damages  caused  by 
giving  improper  preferences  to  other  shippers  of  grain.  Q.  &  C,  U.  R. 
R.  v.  Rae,  18  111.  488. 

2678.  DISCRIMINATING  CHARGES.  A  railway  company,  although 
permitted  to  establish  its  rates  of  transportation,  must  do  so  without 
injurious  discrimination  as  to  individuals.  Vincent  v.  C.  &  A.  R.  R., 
49  111.  33. 

2674.  And  where  it  has  fixed  its  rates  for  the  transportation  of 
grain  from  any  given  station  on  the  line  of  its  road  to  Chicago,  it 
will  not  be  permitted,  on  the  grain  being  taken  there,  to  charge  one 
rate  for  delivery  at  the  warehouse  of  one  person,  and  a  different  rate 
for  delivery  at  that  of  another,  both  warehouses  being  upon  its  line 
or  side  tracks.    76. 

2675.  Among  the  duties  of  railway  companies  is  the  obligation  to 
receive  and  carry  for  all  persons  alike,  without  injurious  discrimina- 
tion as  to  terms,  and  to  deliver  them  in  safety  to  the  consignee.    C.  & 
N.  W.  Ry.  v.  People,  56  111.  365. 

2676.  A  railway  conapany  can  establish  no  custom  inconsistent 
with  the  spirit  and  object  of  its  charter.    It  can  make  such  rules  and 
contracts  as  it  pleases,  not  inconsistent  with  its  duties  as  a  common 
carrier,  and  any  general  language  used  in  its  charter  in  respect  to  its 
powers,  must  be  considered  with  that  limitation.    Ib. 

2677.  A  railway  company  can  make  no  such  injurious  or  arbitrary 
discriminations  between  individuals  in  dealing  with  the  public,  by 
any  custom  or  usage  of  its  own,  in  not  receiving  shipments  of  grain 
in  bulk,  except  on  the  condition  that  it  may  choose  the  consignee.    It 
may  not  unjustly  and  arbitrarily  discriminate  in  favor  of  any  par- 
ticular warehouse  or  consignee.    Ch.  &  N.  W.  Ry.  v.  People,  56  111  365. 

2678.  WHAT  is  UNJUST  DISCRIMINATION.    The  establishment  per- 
manently of  less  rates  of  freight  at  points  of  competition  with  other 
roads  than  is  fixed  at  other  places  for  the  same  distance,  is  an  unjust 
discrimination  between  places,  even  though  the  higher  rates  are  rea- 
sonably low.    Railway  companies  cannot  use  their  power  to  benefit 
particular  individuals  or  to  build  up  particular  localities  by  arbitrary 
discriminations  in  their  favor  to  the  injury  of  other  persons  or  rival 
places.    C.  &  A.  R.  R.  v .  People,  67  111.  1 1 . 

2679.  The  offense  provided  in  this  section  consists  in  an  unjust 
discrimination  in  the  rates  charged:  first,  for  the  transportation  of 
passengers  or  freight  of  any  description;  second,  for  the  use  and  trans- 
portation of  any  railroad  car  upon  the  road;  third,  for  the  use  of  any 
railroad  car  upon  any  of  the  branches  of  the  road;  fourth,  upon  any 
railroads  connected  with  the  road  or  its  branches  which  it  is  author- 
ized to  use  in  this  state.    People  v.  W.,  St.  L.  &  P.  Ry.,  104  111.  476, 

2680.  A  contract  between  a  railroad  company  and  a  shipper  that 
the  latter  shall  pay  the  regular  and  established  rates  of  freight,  the 
same  as  all  other  shippers,  and  that  the  company  shall  pay  back  to 
him,  by  way  of  rebate,  a  certain  portion  of  the  freight  so  charged  and 
paid,  whereby  such  shipper  will  pay  a  less  rate  for  transportation  than 


324  RAILROADS,  WAREHOUSES, 

that  paid  by  others  and  the  public  generally  for  like  services  under 
similar  circumstances  and  for  like  distances,  is  void,  as  being  against 
public  policy  at  the  common  law  and  in  violation  of  the  statute  against 
unjust  discriminations.  /.,  D.  &  8.  R.  B.  v.  Ervin,  118  111.  250. 

2682.  The  case  of  T.,  W.  &  W.  Ry.  v.  Elliott,  76  111.  67,  holding  that 
a  contract  for  a  rebate  of  freight  paid  to  a  railway  company  was  not 
in  violation  of  the  statute  against  unjust  discriminations,  was  made 
under  a  different  statute.    That  case  was  under  the  act  of  1871  which 
provided  only  against  unjust  discriminations  between  places  and  not 
between  individuals,  as  does  the  act  of  1873.    That  case  and  Erie  & 
Pacif.Disp.  v.  Cecil,  112  111.  180-185,  are  not  authority.    Ib. 

2683.  The  seven  specified  acts  of  discrimination,  in  §  3  of  the 
statute,  defined  the  offense  of  unjust  discrimination,  "such"  as  is  to  "be 
deemed  and  taken"  as  "the  unlawful  discriminations  prohibited  by 
the  provisions  of  the  act,"  and  the  clause:    "This  section  shall  not  be 
construed  so  as  to  exclude  other  evidence  tending  to  show  any  unjust 
discrimination  in  freight  and  passage  rates,"  the  court  regards  as 
treating  of  the  matter  only  in  its  evidential  aspect,  and  not  as  in- 
tended to  expand  the  definition  of  the  offense  so  as  to  include  any 
discrimination  in  freight  or  passenger  rates  that  the  court  or  jury 
may  deem  unjust.    It  is  the  intent  of  the  clause  not  to  confine  the 
plaintiffs,  to  the  simple  fact  which  makes  the  prima  fade  case,  but 
allow  them  to  introduce  "other  evidence  tending  to  show"  the  dis- 
crimination involved  in  the  prima  facie  case  was  unjust.    St.  L.,  A. 
&  T.  H.  R.  R.  v.  Hill,  14  Bradw.  579. 

2684.  Where  the  distance  from  A.  to  B.  was  14  miles  and  from  C.  to 
B.  was  28  miles,  and  the  schedule  of  reasonable  maximum  freight 
rates  established  by  the  commissioners  for  appellant's  railroad  was 
114.22  per  car  load  from  A.  to  B.  and  $17.58  from  C.  to  B.,  and  the  com- 
pany charged  $17.40  per  car  load  for  the  latter  distance  and  $5  for  the 
former:    Held,  that  this  was  no  unjust  discrimination  within  the 
meaning  of  the  act  of  1873.    Ib. 

2685.  Where  a  railway  company  charged  a  shipper  2  cents  more 
per  100  pounds  per  car  load  for  carrying  certain  wheat  from  C.  to  B. 
than  it  charged  others  for  wheat  shipped  from  C.  and  consigned  to 
and  delivered  in  the  B.  elevator  in  B.:  Held,  that  the  case  fell  directly 
within  the  statute.    The  right  of  the  company  to  compel  the  shipper 
under  the  penalty  of  a  higher  rate  of  toll,  to  ship  his  freights  to  a 
particular  consignee,  cannot  be  admitted.    76. 

2686.  The  law  imposes  a  duty  on  a  common  carrier  to  make  no  un- 
just, injurious  or  arbitrary  discriminations  between  individuals  in  its 
dealings  with  the  public.    The  right  to  the  transportation  services  of 
the  common  carrier,  is  a  common  right,  belonging  to  every  one 
alike.    76. 

2687.  SAME — distinctive  purposes  of  sections  1  and  6  of  the  stat- 
ute.   §  1  of  the  act  against  unjust  discriminations  by  railway  corpora- 
tions, is  directed  against  discriminations  between  localities  through 
unequal  charges  for  the  same  transportation,  in  the  same  direction, 
over  equal  parts  of  their  roads;  and  it  is  violated  when  all  are  com- 
pelled to  pay  for  transportation  for  the  shorter  distance  a  rate  equal 
to  or  greater  than  that  charged  for  the  same  transportation  in  the 
same  direction  for  the  longer  distance,  as  well  as  when  one  or  a  few 
individuals  are  compelled  to  do  so.    III.  C.  R.  R.  v.  People,  121  111.  304. 

2688.  §  6  of  the  act  simply  gives  a  right  of  action  against  a  railway 
company  to  any  person  or  corporation  which  has  paid  the  company 
extortionate  charges,  or  charges  for  receiving  or  handling  freight  in 
violation  of  the  provisions  of  the  act,  and  which  has  therefore  been 
unjustly  discriminated  against  by  such  railway  company  in  its  charges, 


AND  EMINENT  DOMAIN.  325 

for  three  times  the  amount  of  the  damages  sustained  by  the  party 
aggrieved.  That  section  has  nothing  to  do  with  suits  by  the  state,  and 
its  purpose  is  to  afford  a  personal  indemnity  in  cases  of  personal  injury 
occasioned  by  the  unjust  discrimination.  76. 

2689.  SAME — discriminations  as  between  localities,  not  involving 
the  element  of  competition  in  trade.    On  a  prosecution  by  the  people, 
against  a  railway  company,  to  recover  the  penalty  imposed  by  §  4  of 
the  act  of  1873,  for  an  unjust  discrimination  in  charges  between  locali- 
ties, it  is  not  incumbent  on  the  people  to  prove  a  personal  discrimina- 
tion and  a  personal  injury  as  between  individuals,  but  it  is  sufficient 
merely  to  prove  a  discrimination  as  between  localities,  omitting  speci- 
fic evidence  of  its  effect  upon  different  individuals.    Ib. 

2690.  So  the  fact  that  there  may  be  no  competition  in  a  particular 
trade  between  two  points  upon  a  railroad,  does  not  show  that  a  dis- 
crimination in  charges  for  transportation,  as  between  such  points,  is 
not  unjust.    Ib. 

2691.  In  this  case  it  appeared  that  a  railway  company  charged  ten 
cents  per  hundred  pounds  for  carrying  green  coffee  in  the  sack  from 
Chicago  to  Mattoon,  a  distance  of  one  hundred  and  twenty-two  miles, 
and  on  the  same  day  charged  another  person  sixteen  cents  per  hundred 
for  carrying  coffee  in  the  sack  from  Chicago  to  Kankakee,  a  distance 
of  only  fifty-six  miles,  the  transportation  in  both  instances  being  in 
the  same  direction  and  over  the  same  road.    In  a  suit  by  the  state  to 
recover  the  penalty  for  unjust  discrimination,  the  defendant  showed 
that  there  was  no  competition  between  Kankakee  and  Mattoon  in  the 
grocery  trade,  and  claimed  that  the  discrimination  between  these 
points  was  not  unjust,  and  therefore  allowable:  Held,  that  the  fact  so 
shown  constituted  no  defense  to  the  action.    Ib. 

2692.  SAME— discrimination  at  competitive  points .     The  fact  that 
at  a  given  point  there  is  competition  among  railroads  for  the  trans- 
portation of  freights,  and  some  of  them  are  charging  reduced  or  "cut" 
rates,  will  not  justify  another  railway  company  in  discriminating  in 
favor  of  such  point  as  against  other  points  on  the  line  of  its  road.    Ib. 

2693.  A  reduced  or  "cut"  rate  by  a  railway  company  to  meet  a 
"cut"  rate  of  a  rival  road,  which  reduced  or  "cut"  rate  discriminates 
against  a  non-competitive  point,  is  not,  of  itself,  within  the  meaning 
of  the  statute,  a  just  discrimination.    Ib. 

2694.  The  rivalry  at  competing  points,  which  the  statute  declares 
shall  not  justify  a  discrimination  in  charges,  has  not  reference  solely 
to  such  as  competes  for  a  common  business  to  a  common  market.    It 
may  apply  to  the  same  or  different  markets,  and  to  roads  having  dif- 
ferent termini.    Ib. 

2695.  SAME — instances  where  there  may  be  a  just  discrimination. 
There  may  be  some  greater  expense  to  a  railway  company  in  carrying 
goods  a  given  short  distance  than  for  a  longer  distance  per  mile, 
owing  to  the  stopping  and  starting  of  trains,  loading  and  unloading, 
the  wear  of  machinery,  &c.;  and  when  it  has  full  loads  for  its  cars  in 
each  direction,  it  may  carry  more  cheaply  than  when  it  is  obliged  to 
run  its  cars  empty,  or  only  partially  loaded,  in  one  direction,  or  only 
partially  loaded  in  both  directions.     For  these  and  other  reasons 
affecting  the  cost  of  carriage,  a  company  may  often  afford  to  carry 
the  longer  distance  to  or  from  competitive  points  more  cheaply,  pro 
rata,  than  for  the  shorter  distance.    Discriminations  made  in  good 
faith  because  of  such  circumstances,  are  just,  and  not  within  the 
statute.    Ib. 

2696.  RIGHT  OF  ACTION.    Before  the  railroad  commissioners  had 
assigned  a  railway  company  to  any  class  as  required  by  the  act  of 
1871,  a  passenger  sued  the  company  for  charging  him  fare  exceeding 


326  EAILEOADS,  WAREHOUSES, 

three  cents  a  mile,  and  there  was  no  proof  that  the  charge  was  unrea- 
sonable or  as  to  what  class  the  road  did  belong:  Held,  that  the  plain- 
tiff could  not  recover.  Moore  v.  /.  C.  R.  R.,  68  111.  385. 

2697.  SAME — BEFORE  KATES  FIXED.    Until  the  railroad  commis- 
sioners have  fixed  the  maximum  rates  of  charges,  a  railway  company 
cannot  incur  any  liability  under  the  act  of  1873  for  unreasonable 
charges.    After  such  rates  are  made,  the  taking  of  the  rates  named, 
or  less    rates  will  not  subject  the  company  to  the  penalty,    even 
though  trie  proof  shows  them  to  be  more  than  fair  and  reasonable 
rates.    C.,  B.  &  Q.  R.  R.  v.  People,  77  111.  443. 

2698.  To  maintain  the  action  it  must  be  shown  that  the  com- 
pany has  not  only  made  a  discrimination  in  its  rates  of  tolls,  but 
also  that  such  discrimination  is  unjust.    St.  L.,  A.  &  T.  H.  R.  R.  v. 
Hill,  11  Bradw.  248. 

2699.  The  schedule  of  rates  required  by  the  statute  to  be  fixed  by 
the  railroad  and  warehouse  commissioners,  is  only  prima  fa<ne  evi- 
dence that  such  rates  are  reasonable,  and  notwithstanding  this,  the 
company  may  traverse  the  allegation  of  extortion,  and  show  that  the 
rates  charged  are  reasonable  and  not  extortionate.    Ib. 

2700.  The  classification  of  freights  made  by  the  commissioners  is 
a  part  of  the  schedule  of  maximum  rates  of  charges,  and  is  required  to 
be  published  the  same  as  the  schedule.    St.  L.  &  C.  R.  R.  v.  Slack- 
wood,  14  Bradw.  503. 

2701.  Carriers  can  change  their  rates  of  freight  so  as  to  operate  on 
future  contracts,  but  they  cannot  increase  them  so  as  to  affect  exist- 
ing contracts.    T.,  W.  &  W.  Ry.  v.  Roberts,  71  111.  540;  North.  Traiisf. 
Co.  v.  Sellick,  52  111.  249. 

2702.  PLEADING.    A  declaration  to  recover  the  penalty  for  extor- 
tion which  fails  to  aver  that  a  schedule  of  rates  had  been  established, 
and  that  defendant  had  charged  in  excess  thereof,  is  fatally  defective. 
C.,  B.  &  Q.  R.  R.  v.  People,  77  111.  443. 

2703.  DECLARATION.    In  an  action  to  recover  the  penalty  for  un- 
just discrimination,  the  declaration  must  show  that  the  respective 
freights  mentioned  were  of  like  quantity,  of  the  same  class,  and  that 
in  respect  to  such  freight,  there  was  a  higher  charge  for  a  less  than 
for  a  greater  distance.     The  description  of  the  respective  freights 
merely  as  one  car  load  of  ponies,  and  one  car  load  of  horses,  does  not 
sufficiently  show  them  to  be  "like  quantities  of  freight  of  the  same 
class."    C.,  B.  &  Q.  R.  R.  v.  People,  77  111.  443. 

2704.  This  statute  being  a  penal  one,  the  declaration  should  clearly 
show  that  the  precise  statutory  offense  has  been  committed.    Kan- 
kakee  Coal  Co.  v.  I.  C.  R.  R.,  17  Bradw.  614. 

2705.  LIMITATION.    Actions  seeking  the  treble  damages  penalty 
for  extortion,  or  unjust  discrimination  must  be  brought  within  two 
years  next  after  the  cause  of  action  arises.    St.  L.,  A.  &  T  H.  R.  R.  v. 
Hill,  11  Bradw.  248. 

2706.  EVIDENCE — OF  EXTORTION  OR  UNJUST  DISCRIMINA- 
TION. §  3.  If  any  such  railroad  corporation  shall  charge, 
collect  or  receive,  for  the  transportation  of  any  passenger,  or 
freight  of  any  description,  upon  its  railroad,  for  any  distance, 
within  this  state,  the  same,  or  a  greater  amount  of  toll  or 
compensation  than  is  at  the  same  time  charged,  collected  or 
received  for  the  transportation,  in  the  same  direction,  of  any 
passenger,  or  like  quantity  of  freight  of  the  same  class,  over 
a  greater  distance  of  the  same  railroad;  or  if  it  shall  charge, 


AND  EMINENT  DOMAIN.  327 

collect  or  receive,  at  any  point  upon  its  railroad,  a  higher 
rate  of  toll  or  compensation  for  receiving,  handling  or  deliv- 
ering freight  of  the  same  class  and  quantity,  than  it  shall, 
at  the  same  time,  charge,  collect  or  receive  at  any  other 
point  upon  the  same  railroad;  or  if  it  shall  charge,  collect 
or  receive  for  the  transportation  of  any  passenger,  or  freight 
of  any  description,  over  its  railroad,  a  greater  amount  as  toll 
or  compensation  than  shall,  at  the  same  time,  be  charged, 
collected  or  received  by  it  for  the  transportation  of  any  pas- 
senger, or  like  quantity  of  frieght  of  the  same  class,  being 
transported  in  the  same  direction,  over  any  portion  of  the 
same  railroad,  of  equal  distance;  or  if  it  shall  charge,  col- 
lect or  recive  from  any  person  or  persons,  a  higher  or  greater 
amount  of  toll  or  compensation  than  it  shall,  at  the  same 
time,  charge,  collect,  or  receive  from  any  other  person  or 
persons  for  receiving,  handling  or  delivering  freight  of  the 
same  class  and  like  quantity,  at  the  same  point  upon  its 
railroad;  or  if  it  shall  charge,  collect  or  receive  from  any  per- 
son or  persons,  for  the  transportation  of  any  frieght  upon  its 
railroad,  a  higher  or  greater  rate  of  toll  or  compensation 
than  it  shall,  at  the  same  time,  charge,  collect  or  receive 
from  any  other  person  or  persons,  for  the  transportation  of  the 
like  quantity  of  freight  of  the  same  class,  being  transported 
from  the  same  point,  in  the  same  direction,  over  equal  dis- 
tances of  the  same  railroad;  or  if  it  shall  charge,  collect  or 
receive  from  any  person  or  persons,  for  the  use  and  trans- 
portation of  any  railroad  car  or  cars  upon  its  railroad,  for 
any  distance,  the  same  or  a  greater  amount  of  toll  or  com- 
pensation than  it  at  the  same  time  charged,  collected  or  re- 
ceived from  any  other  person  or  persons,  for  the  use  and 
transportation  of  any  railroad  car  of  the  same  class  or  num- 
ber, for  a  like  purpose,  being  transported  in  the  same  direc- 
tion, over  a  greater  distance  of  the  same  railroad;  or  if  it 
shall  charge,  collect  or  receive  from  any  person  or  persons, 
for  the  use  and  transportation  of  any  railroad  car  or  cars 
upon  its  railroad,  a  higher  or  greater  rate  of  toll  or  compen- 
sation than  it  shall,  at  the  same  time,  charge,  collect  or  re- 
ceive from  any  other  person  or  persons,  for  the  use  and 
transportation  of  any  railroad  car  or  cars  of  the  same  class 
or  number,  for  a  like  purpose,  being  transported  from  the 
same  point,  in  the  same  direction,  over  an  equal  distance  of 
the  same  railroad;  all  such  discriminating  rates,  charges, 
collections  or  receipts,  whether  made  directly,  or  by  means 
of  any  rebate,  drawback,  or  other  shift  or  evasion,  shall  be 
deemed  and  taken,  against  such  railroad  corporation,  as 
prima  facie  evidence  of  the  unjust  discriminations  pro- 
hibited by  the  provisions  of  this  act;  and  it  shall  not  be 
deemed  a  sufficient  excuse  or  justification  of  such  discrimi- 


328  KAILBOADS,  WAREHOUSES, 

nations  on  the  part  of  such  railroad  corporation,  that  the 
railway  station  or  point  at  which  it  shall  charge,  collect  or 
receive  the  same  or  less  rates  of  toll  or  compensation,  for 
the  transportation  of  such  passenger  or  frieght,  or  for  the 
use  and  transportation  of  such  railroad  car  the  greater  dis- 
tance, than  for  the  shorter  distance,  is  a  railway  station  or 
point  at  which  their  exists  competition  with  any  other  rail- 
road or  means  of  transportation.  This  section  shall  not 
be  construed  so  as  to  exclude  other  evidence  tending  to  show 
any  unjust  discrimination  in  freight  and  passenger  rates. 
The  provisions  of  this  section  shall  extend  and  apply  to  any 
railroad,  the  branches  thereof,  and  any  road  or  roads  which 
any  railroad  corporation  has  the  right,  license  or  permission 
to  use,  operate  or  control,  wholly  or  in  part,  within  this 
state:  Provided,  however,  that  nothing  herein  contained 
shall  be  so  construed  as  to  prevent  railroad  corporations 
from  issuing  commutation,  excursion  or  thousand-mile 
tickets,  as  the  same  are  now  issued  by  such  corporations. 

2707.  The  words  used  in  the  first  clause  of  this  section,  "within  this 
state,"  are  not  intended  to  limit  the  law  to  transportation  within  the 
state,  but  to  provide  and  declare  that  certain  things  shall  be  prima 
fade  evidence  to  sustain  a  charge  of  uujust  discrimination.    People 
v.  W.,  St.  L.  &  P.  Ry.,  104  111.  476. 

2708.  The  words  "this  section  shall  not  be  so  construed  as  to  ex- 
clude other  evidence  tending  to  show  any  unj  ust  discrimination,"  &c., 
are  not  intended  to  enlarge  the  definition  of  the  offense  of  unjust  dis- 
crimination.   It  does  not  give  the  court  plenary  power  to  determine 
what  is  a  reasonable  charge,  &c.    The  intent  of  the  clause  is  to  show 
that  the  plaintiff  is  not  to  be  confined  to  the  simple  facts  which  make 
a  prima  facie  case.    St.  L.,  A.  &  T.  H.  R.  R.  v.  Hill,  14  Bradw.  579. 

2709.  A  law  similar  to  this  suggested  as  not  being  subject  to  any 
constitutional  objection.    C.  &  A.  R.  R.  v.  People,  67  111.  11;  C.,  B.  & 
Q.  R.  R.  v.  People,  11  111.  448. 

2710.  PENALTIES.     §  4.  Any  such  railroad  corporation 
guilty  of  extortion,  or  of  making  any  unjust  discrimination 
as  to  passenger  or  freight  rates,  or  the  rates  for  the  use  and 
transportation  of  railroad  cars,  or  in  receiving,  handling  or 
delivering  freights,  shall  upon  conviction  thereof,  be  fined  in 
any  sum   not  less  than  one  thousand  dollars  ($1,000),  nor 
more  than  five  thousand  dollars  ($5,000),  for  the  first  offense; 
and  for  the  second  offense  not  less  than  five  thousand  dollars 

>,000),  nor  more  than  ten  thousand  dollars  ($10,000),  and 
'or  the  third  offense  not  less  than  ten  thousend  dollars  ($10,- 
000),  nor  more  than  twenty  thousand  dollars  ($20,000);  and 
for  every  subsequent  offense  and  conviction  thereof,  shall  be 
liable  to  a  fine  of  twenty-five  thousand  dollars  ($25,000): 
Provided,  that  in  all  cases  under  this  act  either  party  shall 
have  the  right  of  trial  by  jury.  [See  "Quo  Warranto,"  ch. 
112,  §§1-6.] 

2711.  APPEAL — to  what  court.    In  an  action  of  debt  by  the  state's 


AND  EMINENT  DOMAIN.  329 

attorney  for  extortion  or  unjust  discrimination  no  appeal  lies  from  an 
order  dismissing  the  suit,  to  the  supreme  court.  It  should  be  taken  to 
the  appellate  court.  People  v.  St.  Louis  &  Cairo  R.  R.,  106  111.  412. 

2112.  PROCEEDINGS  TO  EECOVEE  PINES.  §5.  The  fines 
hereinbefore  provided  for  may  be  recovered  in  an  actio*n  of 
debt,  in  the  name  of  the  people  of  the  state  of  Illinois,  and 
there  may  be  several  counts  joined  in  the  same  declaration 
as  to  extortion  and  unjust  discrimination,  and  as  to  passenger 
and  freight  rates,  and  rates  for  the  use  and  transportation 
of  railroad  cars,  and  for  receiving,  handling  or  delivering 
freights.  If,  upon  the  trial  of  any  cause  instituted  under  this 
act,  the  jury  shall  find  for  the  people,  they  shall  assess  and 
return  with  their  verdict  the  amount  of  the  fine  to  be  imposed 
upon  the  defendant,  at  any  sum  not  less  than  one  thousand 
dollars  ($1,000)  nor  more  than  five  thousand  dollars  ($5,000), 
and  the  court  shall  render  judgment  accordingly;  and  if  the 
jury  shall  find  for  the  people,  and  that  the  defendant  has  been 
once  before  convicted  of  a  violation  of  the  provisions  of  this 
act,  they  shall  return  such  finding  with  their  verdict,  and 
shall  assess  and  return  with  their  verdict  the  amount  of  the 
fine  to  be  imposed  .Aupon  the  defendant,  at  any  sum  not  less 
than  five  thousand  dollars  ($5,000)  nor  more  than  ten  thous- 
and dollars  ($10,000),  and  the  court  shall  render  judgment 
accordingly;  and  if  the  jury  shall  find  for  the  people,  and 
that  th.Q  defendant  has  been  twice  before  convicted  of  a  vio- 
lation of  the  provisions  of  this  act,  with  respect  to  extortion 
or  unjust  discrimination,  they  shall  return  such  finding  with 
their  verdict,  and  shall  assess  and  return  with  their  verdict 
the  amount  oH  the  fine  to  be  imposed  upon  the  defendant,  at 
any  sum  not  less  than  ten  thousand  dollars  ($10,000)  nor 
more  than  twenty  thousand  dollars  ($20,000);  and  in  like 
manner,  for  every  subsequent  offense  and  conviction,  such 
defendant  shall  be  liable  to  a  fine  of  twenty-five  thousand 
dollars  ($25,000) :  Provided,  that  in  all  cases  under  the  pro- 
visions of  this  act,  a  preponderance  of  evidence  in  favor  of 
the  people  shall  be  sufficient  to  authorize  a  verdict  and  judg- 
ment for  the  people. 

2718.  ACTION.  Before  an  action  lies  for  the  penalty,  a  schedule 
of  rates  must  be  established  as  provided  in  §  8  of  the  act  classifying 
the  freights,  and  the  same  published  for  the  requisite  period.  Form 
of  declaration.  C.,  B.  &  Q.  R.  R.  v.  People,  77  111.  443;  St.  L.  &  C.  R. 
R.  v.  Blackwood,  14  Bradw.  503. 

2714.  DAMAGES — TREBLE  AND  ATTORNEY'S  FEE.  §  6.  If 
any  such  railroad  corporation  shall,  in  violation  of  any  of  the 
provisions  of  this  act,  ask,  demand,  charge  or  receive  of  any 
person  or  corporation  any  extortionate  charge  or  charges  for 
the  transportation  of  any  passengers,  goods,  merchandise  or 
property,  or  for  receiving,  handling  or  delivering  freights, 


330  KAILROADS,  WAREHOUSES, 

or  shall  make  any  unjust  discrimination  against  any  person 
or  corporation  in  its  charges  therefor,  the  person  or  corpora- 
tion so  offended  against  may,  for  each  offense,  recover  of 
such  railroad  corporation,  in  any  form  of  action,  three  times 
the  amount  of  the  damages  sustained  by  the  party  aggrieved, 
together  "with  cost  of  suit  and  a  reasonable  attorney's  fee,  to 
be  fixed  by  the  court  where  the  same  is  heard,  on  appeal  or 
otherwise,  and  taxed  as  a  part  of  the  costs  of  the  case. 

2715.  The  action  given  being  penal  in  its  nature,  is  barred  in  two 
years  by  the  limitation  law.    St.  L.,  A.  &  T.  H.  R.  R.  v.  Hill,  11  Bradw. 
248. 

2716.  The  declaration  must  show  a  discrimination  which  was  un- 
just to  the  plaintiff.    Corporation  may  traverse  charge  of  extortion.  Ib. 

2717.  Action  being  highly  penal  the  statute  will  be  strictly  con- 
strued and  the  case  clearly  brought  within  its  provisions.    Ib. 

2718.  Counts  concluding  "contrary  to  the  form  of  the  statute,'' 
shows  the  action  is  founded  on  the  statute.    Ib. 

2719.  DUTIES  OF  RAILROAD  AND  WAREHOUSE  COMMISSION- 
ERS.    §  7.  It  shall  be  the  duty  of  the  railroad  and  warehouse 
commissioners  to  personally  investigate  and  ascertain  whether 
the  provisions  of  this  act  are  violated  by  any  railroad  corpo- 
ration in  this  state,  and  to  visit  the  various  stations  upon  the 
line  of  each  railroad  for  that  purpose,  as  often  as  practicable; 
and  whenever  the  facts,  in  any  manner  ascertained  by  said 
commissioners,  shall  in  their  judgment  warrant  such  pros- 
ecution, it  shall  be  the  duty  of  said  commissioners  to  im- 
mediately  cause    suits  to   be   commenced   and    prosecuted 
against  any  railroad  corporation  which  may  violate  the  pro- 
visions  of  this   act.     Such   suits  and  prosecutions  may  be 
instituted  in  any  county  in  this  state  through  or  into  which 
the  line  of  the  railroad  corporation  sued  for  violating  this 
act  may  extend.     And  such  railroad  and  warehouse  commis- 
sioners  are  hereby  authorized,  when  the  facts  of  the  case 
presented  to  them  shall,  in  their  judgment,  warrant  the  com- 
mencement of  such  action,  to  employ  counsel  to  assist  the 
attorney  general  in  conducting  such  suit  on  behalf  of  the 
state.     No  such  suits  commenced  by  said  commissioners  shall 
be  dismissed,  except  said  railroad  and  warehouse  commis- 
sioners and  the  attorney  general  shall  consent  thereto. 

2720.  SCHEDULE  OF  RATES  TO  BE  MADE — EVIDENCE     §8. 
The  railroad  and  warehouse  commissioners  are  hereby  direc- 
ted to  make,  for  each  of  the  railroad  corporations  doing  busi- 
ness in  this  state,  as  soon  as  practicable,  a  schedule  of  rea- 
sonable maximum  rates  of  charges  for  the  transportation  of 
passengers  and  freights,  and  cars  of  each  of  said  railroads; 
and  said  schedule  shall  in  all  suits  brought  against  such  rail- 
road corporations  wherein  is,  in  any  way  involved  the  charges 
of  any  such  railroad  corporation  for  the  transportation  of  any 


AND  EMINENT  DOMAIN.  331 

passenger  or  freight,  or  cars,  or  unjust  discrimination  in 
relation  thereto,  be  deemed  and  taken  in  all  courts  of  this 
state  as  prima  facie  evidence  that  the  rates  therein  fixed,  are 
reasonable  maximum  rates  of  charges  for  the  transportation 
of  passengers  and  freights,  and  cars  upon  the  railroads  for 
which  said  schedules  may  have  been  respectively  prepared. 
Said  commissioners  shall,  from  time  to  time,  as  often  as  cir- 
cumstances may  require,  change  and  revise  said  schedules. 
When  any  schedule  shall  have  been  made  or  revised,  as  afore- 
said, it  shall  be  the  duty  of  said  commissioners  to  have  the 
same  printed  by  the  state  printer  under  the  contract  govern- 
ing the  state  printing,  and  said  commissioners  shall  furnish 
two  copies  of  such  printed  schedule  to  the  president,  general 
superintendent  or  receiver  of  each  railroad  company  or  cor- 
poration doing  business  in  this  state.  All  such  schedules 
heretofore  or  hereafter  made  shall  be  received  and  held  in 
all  such  suits  as  prima  facie  the  schedules  of  said  commis- 
sioners, without  further  proof  than  the  production  of  the 
schedule  desired  to  be  used  as  evidence,  with  a  certificate  of 
the  railroad  and  warehouse  commissioners  that  the  same  is  a 
true  copy  of  a  schedule  prepared  by  them  for  the  railroad 
company  or  corporation  therein  named.  [As  amended  by 
act  approved  June  30,  1885.  In  force  July  1, 1885.  L.  1885, 
p.  232. 

2721.  Until  the  rates  of  charges  are  fixed  by  the  commissioners  no 
liability  can  be  incurred  under  the  statute  for  extortionate  charges. 
C.,  B.  &  Q.  R.  R.  v.  People,  11  111.  443. 

2722.  Classification  of  the  freights  is  a  part  of  the  schedule,  and 
should   be  published  as  such  to  give  validity  to  the  schedule  of  maxi- 
mum charges.    St.  L.,  &c.,  R.  R.  v.  Blackioood,  14  Bradw.  503. 

2723.  Special  charters  giving  the  right  to  fix  charges  held  not  to 
prevent  the  state  from  fixing  rates  by  general  laws.    Ruggles  v.  Illi- 
nois, 108  U.  8.  526;  /.  C.  R.  R.  v.  Illinois,  Id  541. 

2724.  EVIDENCE — FINES — PRACTICE.     §  10.  In  all  cases 
under  the  provisions  of  this  act,  the  rules  of  evidence  shall 
be  the  same  as  in  other  civil  actions,  except  as  hereinbefore 
otherwise  provided.    All  fines  recovered  under  the  provisions 
of  this  act  shall  be  paid  into  the  county  treasury  of  the  county 
in  which  the  suit  is  tried,  by  the  person  collecting  the  same, 
in  the  manner  now  provided  by  law,  to  be  used  for  county 
purposes.     The  remedies  hereby  given  shall  be  regarded  as 
cumulative  to  the  remedies  now  given  by  law  against  rail- 
road corporations,  and  this  act  shall  not   be  construed  as 
repealing  any  statute  giving   such   remedies.      Suits   com- 
menced under  the   provisions  of  this   act  shall   have    pre- 
cedence over  all  other  business,  except  criminal  business. 

2725.  "BAILROAD   CORPORATION"   DEFINED.     §  11.    The 
term  "railroad  corporation,"  contained  in  this  act,  shall  be 


332  EAILKOADS,  WAREHOUSES, 

deemed  and  taken  to  mean  all  corporations,  companies  or  in- 
dividuals now  owning  or  operating,  or  which  may  hereafter 
own  or  operate  any  railroad,  in  whole  or  in  part,  in  this 
state;  and  the  provisions  of  this  act  shall  apply  to  all  per- 
sons, firms  and  companies,  and  to  all  associations  of  persons, 
whether  incorporated  or  otherwise,  that  shall  do  business  as 
common  carriers  upon  any  of  the  lines  of  railways  in  this 
state  (street  railways  excepted)  the  same  as  to  railroad  cor- 
porations hereinbefore  mentioned.  [§  12,  repeal,  omitted. 
See  "Statutes,"  ch.  131,  §  5.  See  ante,  2457-2482.] 

2725a.  As  to  the  ruling  of  the  courts  in  some  of  the  other  states  in 
respect  to  extortion  and  unjust  discriminations  see  State  v.  Concord 
R.  R.,  59  N".  H.  85;  Commonwealth  v.  Housatonic  R.  R.,  143  Mass. 
264;  State  v.  C.  &  N.  W.  Ry.,  70  Iowa,  162;  Scojield  v.  Ry.  Co.',  43  Ohio  St. 
571;  W.  &  St.  P.  R.  R.  v.  Blake,  94  U.  S.  180;  Commonwealth  v.  East- 
ern R.  R.,  103  Mass.  258;  Sanford  v.  R.  R.,  24  Pa.  St.  378;  Messenger 
v.Perm.  R.  R.,  36  N.  J.  Law,  407, 412;  McDuffee  v.  R.  R.  Co.,  52  N.  H.  447; 
Shipper  v.R.  R.  Co.,  47  Pa.  St.  338;  Audenried  \.  P.  R.  R.  Co.,  68  Pa.  St. 
370;  New  England  Express  Co.  v.  M.  C.  R.,  57  Me.  188:  G.  W.  Ry.  v. 
Sutton,  4  Eng.  &  Ir.  App.  226;  State  v.  D.,  L.  &  W.  R.R.,48  N.  J.  (Law) 
55;  Woodhouse  v.  R.  &.  Ry.,  67  Tex.  416. 

RAILROAD  CROSSINGS. 

An  act  in  regard  to  the  dangers  incident  to  railroad  crossings  on  the  same  level. 
Approved  June  3,  1887.  In  force  July  1,  1887.  [Laws  of  1887,  p.  252.  R.  S.  1887,  p 
1015,  §§  76o,  76b;  3  S.  &  C.,  1887,  p.  449. 

2726.      TWO   OB  MORE  RAILROADS  CROSSING  EACH  OTHER  ON 

SAME  LEVEL— REQUIREMENTS.  §  1.  Be  it  enacted  by  the  peo- 
ple of  the  state  of  Illinois,  represented  in  the  general  assem- 
bly, That  when,  and  in  case  two  or  more  railroads  crossing 
each  other  at  a  common  grade,  shall  by  a  system  of  interlock- 
ing and  automatic  signals,  or  by  other  works,  fixtures  and 
machinery  to  be  erected  by  them,  or  either  of  them,  render  it 
safe  for  engines  and  trains  to  pass  over  such  crossing  with- 
out stopping,  and  such  system  of  interlocking  and  signals, 
works  or  fixtures,  shall  first  be  approved  by  the  railroad  and 
warehouse  commissioners,  or  any  two  of  them,  and  a  plan  of 
such  interlocking  and  signals,  works  or  fixtures,  for  such 
crossing  designating  the  plan  of  crossing,  shall  have  been 
filed  with  such  railroad  and  warehouse  commissioners,  then, 
and  in  that  case,  it  is  hereby  lawful  for  the  engines  and  trains 
of  any  such  railroad  or  railroads  to  pass  over  said  crossing 
without  stopping,  any  law,  or  the  provisions  of  any  law  now 
in  force,  to  the  contrary  notwithstanding;  and  all  such  other 
provisions  of  laws,  contrary  hereto,  are  hereby  declared  not  to 
be  applicable  in  such  case:  Provided,  that  the  said  railroad 
and  warehouse  commissioners  shall  have  power  in  case  such 
interlocking  system,  in  their  judgment,  shall  by  experience 
prove  to  be  unsafe  or  impracticable,  to  order  the  same  to  be 
discontinued. 


AND  EMINENT  DOMAIN.  333 

2727.  CIVIL  ENGINEER  TO  EXAMINE  SYSTEM,  ETC — COM- 
PENSATION.    §  2.  The  said  railroad  and  warehouse  commis- 
sioners may  appoint  a  competent  civil  engineer  to  examine 
such  proposed  system  and  plans,  and  report   the  result  of 
such  examination  for  th*  information  of  such  railroad  and 
warehouse  commissioners;  and  said  railroad  and  warehouse 
commissioners  are  hereby  authorized  to  allow  and  reward  five 
dollars  per  day  as  a  compensation  for  the  services  of  such 
civil  engineer,  or  such  reasonable  sum  as  such  commissioners 
shall  deem  fit,  and  to  allow  and  reward  such  other  and  further 
sums,  as  they  shall  deem  fit  to  pay  all  other  fees,  costs  and 
expenses  to  arise  under  said  application,  to  be  paid  by  the 
railroad  company  or  companies  in  interest,  to  be  taxed  and 
paid  or  collected  as  in  other  cases.     And  the  said  railroad 
and  warehouse  commissioners  are  also  empowered,  on  appli- 
cation for  their  approval  of  any  such  system  of  interlocking 
and  signals,  works  or  fixtures,  to  require  of  the  applicant 
security  for  such  fees,  costs  and  expenses,  or  the  deposit,  in 
lieu  thereof,  of  a  sufficient  amount  in  money  for  that  purpose 
to  be  fixed  by  them. 

WEIGHING  GRAIN  IN  BULK  BY  BAILED  AD  COMPANY. 

An  act  relating  to  the  receipt,  shipment,  transportation  and  weighing  of  grain  in 
bulk  by  railroad  companies.  Approved  June  15,  1887-  In  force  July  1,  1887.  [L.  1887, 
p.  253;  R.  8.  1887,  p.  1040;  3  S.  &  0.,  p.  448.J 

2728.  EOAD  RECEIVING  FOR  TRANSPORTATION   SHALL  FUR- 
NISH SUITABLE  APPLIANCES  FOR  WEIGHING,  ETC.     §  1.    Be  it  6H- 

acted  by  the  people  of  the  state  of  Illinois,  represented  in  the 
general  assembly,  That  in  all  counties  of  the  third  class,  and  in 
all  cities  having  not  less  than  50,000  inhabitants,  where  bulk 
grain,  millstuffs  or  seeds  are  delivered  by  any  railroad  trans- 
porting the  same  from  initial,  points  to  another  road  for  trans- 
portation to  other  points,  such  road  or  roads  receiving  the  same 
for  transportation  to  said  points,  or  other  connections  leading 
thereto,  shall  provide  suitable  appliances  for  unloading, 
weighing  and  transferring  such  property  from  one  car  to 
another  without  mixing  or  in  any  way  changing  the  identity 
of  the  property  so  transferred,  and  such  property  shall  be 
accurately  weighed  in  suitably  covered  hopper  scales,  which 
will  determine  the  actual  net  weight  of  the  entire  contents  of 
any  carload  of  grain,  millstuffs  or  seeds  at  a  single  draft, 
without  gross  or  tare,  and  which  weights  shall  always  be 
given  in  the  receipts  or  bills  of  lading  and  used  as  the  basis 
of  any  freight  contracts  affecting  such  shipments  between 
such  railroad  companies  and  the  owners,  agents  or  shippers 
of  such  grain,  millstuffs  or  seeds  so  transported  and  trans- 
ferred. 

2729.  WHERE  ORIGINAL  CAR  RUNS    THROUGH   WITHOUT 


334  RAILROADS,  WAREHOUSES, 

TRANSFER.  §  2.  The  practice  of  loading  grain,  millstuffs  or 
seeds  into  foreign  or  connecting  line  cars  at  the  initial  point 
from  which  the  grain,  millstuffs  or  seeds  are  originally 
shipped,  or  the  running  of  the  original  car  through  without 
transfer,  shall  not  relieve  the  railroad  making  the  contract  to 
transport  the  same  to  its  destination  or  connection  leading 
thereto,  from  weighing  and  transferring  such  property  in  the 
manner  aforesaid,  unless  the  shipper,  owner  or  agent  of  such 
grain,  millstuffs  or  seeds  shall  otherwise  order  or  direct. 

2730.  LIABILITY  OF  RAILROAD  COMPANY  FOR   NEGLECT    OR 

FAILURE  —  PROCEEDINGS.  §  3.  Any  railroad  company  neg- 
lecting or  refusing  to  comply  promptly  with  any  and  all 
of  the  requirements  of  either  sections  one  or  two  of  this 
act,  shall  be  liable  in  damages  to  the  party  interested, 
to  be  recovered  by  the  party  damaged  in  an  action  „  of 
assumpsit,  and  such  party  may  proceed  by  mandamus 
against  any  railroad  company  so  refusing  or  neglecting  to 
comply  with  the  requirements  of  this  act;  and  if  the  ship- 
per, owner  or  agent  of  any  such  grain,  millstuffs  or  seeds 
shall  fail  or  neglect  to  proceed  by  mandamus,  it  shall  then  be 
the  duty  of  the  railroad  and  warehouse  commissioners  of  this 
state,  upon  complaint  of  the  party  or  parties  interested,  to 
proceed  against  the  railroad  failing  or  refusing  to  comply 
with  the  provisions  of  this  act;  and  all  the  powers  heretofore 
conferred  by  law  upon  the  board  of  railroad  and  warehouse 
commissioners  of  this  state,  shall  be  applicable  in  the  con- 
duct of  any  legal  proceeding  commenced  by  such  commis- 
sioners under  this  act. 

2731.  PENALTY,  HOW  RECOVERED.     §  4.  Any  railroad  com- 
pany so  refusing  or  neglecting  as  aforesaid,  shall  be  liable  to 
a  penalty  of  not  less  than  $100  nor  more  than  $500  for  each 
neglect  or  refusal  as  aforesaid,  to  be  recovered  in  an  action 
of  assumpsit  in  the  name  of  the  people  of  the  state  of  Illinois 
for  the  use  of  the  county  in  which  such  act  or  acts  of  neglect 
or  refusal  shall  occur,  and  it  shall  be  the  duty  of  the  railroad 
and  warehouse  commissioners  to  cause  prosecutions  for  such 
penalties  to  be  instituted  and  prosecuted. 

WAREHOUSES. 

An  act  to  regulate  public  warehouses,  and  the  warehousing  and  inspection  of  grain, 
and  to  give  effect  to  article  thirteen  of  the  constitution  of  this  state.  Approved  April  £>, 
1871.  In  force  July  1,  1871.  [L.  1871-2,  p.  762;  R.  S.  188«~,  p.  1027;  S.  &  C.,  p.  1906;  Coth- 
ran  p.  1172.] 

2732.  This  act  does  not  violate  either  the  state  or  federal  consti- 
tution. Munn  v.  People,  69  111.  80;  People  v.  Harper,  91  111.  357;  Munn 
v.  Illinois,  94  U.  S.  113. 

2733.  There  is  no  constitutional  provision  which  prohibits  the 
legislature  from  committing  the  inspection  of  grain  to  a  board  created 
for  that  purpose.    People  v.  Harper,  91  111.  357. 


AND  EMINENT  DOMAIN.  335 

2734.  CLASSIFIED.   §  1.  Be  it  enacted  by  the  poeple  of  the 
State  of  Illinois,  represented  in  the  general  assembly,  That 
public  warehouses,  as  defined  in  article  13  of  the  constitu- 
tion of  this  state,  shall  be  divided  into  three  classes,  to  be 
designated  as  classes  A.,  B.  and  C.,  respectively. 

2735.  CLASSES  DEFINED.     §  2.  Public  warehouses  of  class 
A.  shall  embrace  all  warehouses,  elevators  and  granaries  in 
which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  dif- 
ferent owners  is  mixed  together,  or  in  which  grain  is  stored 
in  such  a  manner  that  the  identity  of  different  lots  or  parcels 
cannot  be  accurately  preserved,  such  warehouses,  elevators 
or   granaries  being  located  in   cities  having   not  less  than 
100,000  inhabitants.      Public   warehouses  of  class  B  shall 
embrace   all   other  warehouses,    elevators   or   granaries  in 
which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  dif- 
ferent owners  is  mixed  together.    Public  warehouses  of  class 
C  shall  embrace  all  other  warehouses  or  places  where  prop- 
erty of  any  kind  is  stored  for  a  consideration. 

2736.  Statute  relating  to  inspection  of  grain  in  Chicago,  although 
in  a  certain  sense  local  and  special,  is  not  within  the  constitutional 
prohibition  against  such  legislation.    People  v.  Harper,  91  111.  357. 

2737.  LICENSE.  •  §  3.  The  proprietor,  lessee  or  manager 
of  any  public  warehouse  of  class  A  shall  be  required,  before 
transacting  any  business  in  such  warehouse,  to  procure  from 
the  circuit  court  of  the  county  in  which  such  warehouse  is 
situated,  a  license,  permitting  such  proprietor,  lessee  or  mana- 
ger to  transact  business  as  a  public  warehouseman  under  the 
laws  of  this 'state,  which  license  shall  be  issued  by  the  clerk 
of  said  court  upon  a  written  application,  which  shall  set  forth 
the  location  and  name  of  such  warehouse,  and  the  individual 
name  of  each  person  interested  as  owner  or  principal  in  the 
management  of  the  same;  or,  if  the  warehouse  be  owned  or 
managed  by  a  corporation,  the  names  of  the  president,  sec- 
retary and  treasurer  of  such  corporation  shall  be  stated;  and 
the  said  license  shall  give  authority  to  carry  on  and  conduct 
the  business  of  a  public  warehouse  of  class  A  in  accordance 
with  the  laws  of  this  state,  and  shall  be  revocable  by  the  said 
court  upon  a  summary  proceeding  before  the  court,  upon 
complaint  of  any  person  in  writing,  setting  forth  the  particu- 
lar violation  of  law,  and  upon  satisfactory  proof,  to  be  taken 
in  such  manner  as  may  be  directed  by  the  court. 

2738.  BOND.     §  4.    The  person  receiving  a  license   as 
herein  provided,  shall  file  with  the  clerk  of  the  court  grant- 
ing the  same,  a  bond  to  the  people  of  the  state  of  Illinois, 
with  good  and  sufficient  surety,  to  be  approved  by  said  court, 
in  the  penal  sum  of  $10,000,  conditioned  for  the  faithful  per- 
formance of  his  duty  as  public  warehouseman  of  class  A, 


336  RAILROADS,  WAREHOUSES, 

and  his  full  and  unreserved  compliance  with  all  laws  of  this 
state  in  relation  thereto. 

2739.  PENALTY  FOR  DOING  BUSINESS  WITHOUT  LICENSE. 
§  5.  Any  person  who  shall  transact  the  business  of  a  public 
warehouse  of  class  A   without  first  procuring  a  license  as 
herein  provided,  or  who  shall  continue  to  transact  any  such 
business  after  such  license  has  been  revoked  (save  only  that 
he  may  be  permitted  to  deliver  property  previously  stored  in 
such  warehouse),  shall,  on  conviction,  be  fined  in  a  sum  not 
less  than  $100  nor  more  than  $500  for  each  and  every  day  such 
business  is  so  carried  on;  and  the  court  may  refuse  to  renew 
any  license,  or  grant  a  new  one,  to  any  of  the  persons  whose 
license  has  been  revoked,  within  one  year  from  the  time  the 
same  was  revoked. 

2740.  NOT  TO  DISCRIMINATE — NOT  TO  MIX  GRADE — RE- 
CEIPTS.    §  6.  It  shall  be  the  duty  of  every  warehouseman  of 
class  A  to  receive  for  storage  any  grain  that  may  be  ten- 
dered to  him,  in  the  usual  manner  in  which  warehouses  are 
accustomed  to  receive  the  same  in  the  ordinary  and  usual 
course  of  business,  not  making  any  discrimination  between 
persons  desiring  to  avail  themselves  of  warehouse  facilities — 
such  grain,  in  all  cases,  to  be  inspected  and  graded  by  a  duly 
authorized  inspector,  and  to  be  stored  with  grain  of  a  similar 
grade,  received  at  the  same  time,  as  near  as  may  be.     In  no 
case  shall  grain  of  different  grades  be  mixed  together  while 
in  store;  but,  if  the  owner  or  consignee  so  requests,  and  the 
warehouseman  consent  thereto,  his  grain  of  the  same  grade 
may  be  kept  in  a  bin  by  itself,  apart  from  that  of  the  owners; 
which  bin  shall,  thereupon,  be  marked  and  known  as  a  "sep- 
arate bin."     If  a  warehouse  receipt  be  issued  for  grain  so 
kept  separate,  it  shall  state,  on  its  face,  that  it  is  in  a  sepa- 
rate bin,  and  shall  state  the  number  of  such  bin;  and  no 
grain    shall    be   delivered    from    such  warehouses    unless 
it  be  inspected  on  the  delivery  thereof  by  a  duly  authorized 
inspector  of  grain.     Nothing  in  this  section  shall  be  so  con- 
strued as  to  require  the  receipt  of  grain  into  any  warehouse 
in  which  there  is  not  sufficient  room  to  accommodate  or  store 
it  properly,  or  in  cases  where  such  warehouse  is  necessarily 
closed. 

274-1.  MANNER  OF  ISSUING  RECEIPTS.  §7.  Upon  applica- 
tion of  the  owner  or  consignee  of  grain  stored  in  a  public 
warehouse  of  class  A,  the  same  being  accompanied  with  evi- 
dence that  all  transportation  or  other  charges  which  may  be 
a  lien  upon  such  grain,  including  charges  for  inspection, 
have  been  paid,  the  warehouseman  shall  issue  to  the  person 
entitled  thereto,  a  warehouse  receipt  therefor,  subject  to  the 
order  of  the  owner  or  consignee,  which  receipt  shall  bear 


AND  EMINENT  DOMAIN.  337 

date  corresponding  with  the  receipt  of  grain  into  store,  and 
shall  state  upon  its  face  the  quantity  and  inspected  grade  of 
the  grain,  and  that  the  grain  mentioned  in  it  has  been  re- 
ceived into  store,  to  be  stored  with  grain  of  the  same  grade 
by  inspection,  received  at  about  the  date  of  the  receipt,  and 
that  it  is  deliverable  upon  the  return  of  the  receipt,  properly 
indorsed  by  the  person  to  whose  order  it  was  issued,  and  the 
payment  of  proper  charges  for  storage.  All  warehouse  re- 
ceipts for  grain,  issued  from  the  same  warehouse,  shall  be 
consecutively  numbered;  and  no  two  receipts,  bearing  the 
same  number,  shall  be  issued  from  the  same  warehouse  dur- 
ing any  one  year,  except  in  the  case  of  a  lost  or  destroyed 
receipt,  in  which  case  the  new  receipt  shall  bear  the  same 
date  and  number  as  the  original,  and  shall  be  plainly  marked 
on  its  face  "duplicate."  If  the  grain  was  received  from  rail- 
road cars,  the  number  of  each  car  shall  be  stated  upon  the 
receipt,  with  the  amount  it  contained;  if  from  canal  boat  or 
other  vessel,  the  name  of  such  craft;  if  from  teams  or  by 
other  means,  the  manner  of  its  receipt  shall  be  stated  on  its 
face. 

2742.  CANCELING  RECEIPTS.     §8.  Upon  the  delivery  of 
grain   from   store,  upon  any  receipt,  such  receipt  shall  be 
plainly  marked  across  its  face  with  the  word  "canceled,"  with 
the  name  of  the  person  canceling  the  same,  and  shall  there- 
after be  void,  and  shall  not  again  be  put  in  circulation,  nor 
shall  grain  be  delivered  twice  upon  the  same  receipt. 

2743.  FURTHER    or  ISSUING  AND  CANCELING  RECEIPTS. 
§  9.  No  warehouse  receipt  shall  be  issued,  except  upon  the 
actual  delivery  of   grain  into  store,  in  the  warehouse  from 
which  it  purports  to  be  issued,  and  which  is  to  be  represented 
by  the  receipt;  nor  shall  any  receipt  be  issued  for  a  greater 
quantity  of  grain  than  was  contained  in   the  lot  or  parcel 
stated  to  have  been  received;  nor  shall  more  than  one  receipt 
be  issued  for  the  same  lot  of  grain,  except  in  cases  where 
receipts  for  a  part  of  a  lot  are  desired,  and  then  the  aggregate 
receipts  for  a  particular  lot  shall  cover  that  lot  and  no  more. 
In  cases  where  a  part  of  the  grain  represented  by  the  receipt 
is  delivered  out  of   store  and   the  remainder  is  left,  a  new 
receipt  may  be   issued  for  such  remainder;   but  such  new 
receipt  shall  bear  the  same  date  as   the  original,  and  shall 
state  on  its  face  that  it  is  balance  of  receipt  of  the  original 
number;  and  the  receipt  upon  which  a  part  has  been  deliv- 
ered shall  be  canceled  in  the  same  manner  as  if  it  had  all 
been  delivered.     In  case  it  be  desirable  to  divide  one  receipt 
into  two  or  more,  or  in  case  it  be  desirable  to  consolidate  two 
or  more   receipts  into  one,  and  the  warehouseman  consent 
thereto,  the  original  receipt  shall  be  canceled  the  same  as  if 

-23 


338  KAILEOADS,  WAREHOUSES, 

the  grain  had  been  delivered  from  store;  and  the  new  receipts 
shall  express  on  their  face  that  they  are  parts  of  other  re- 
ceipts, or  a  consolidation  of  other  receipts,  as  the  case  may 
be;  and  the  numbers  of  the  original  receipts  shall  also  appear 
upon  the  new  ones  issued,  as  explanatory  of  the  change,  but 
no  consolidation  of  receipts  of  dates  differing  more  than  ten 
days  shall  be  permitted,  and  all  new  receipts  issued  for  old 
ones  canceled,  as  herein  provided,  shall  bear  the  same  dates 
as  those  originally  issued,  as  near  as  may  be. 

2744.  NOT  TO  LIMIT  LIABILITY.     §10.  No  warehouseman 
in  this  state  shall  insert  in  any  receipt  issued  by  him,  any 
language  in  anywise  limiting  or  modifying  his  liabilities  or 
responsibility,  as  imposed  by  the  laws  of  this  state. 

2745.  As  to  the  liability  of  a  warehouseman,  see  Myers  v.  Walker, 
31  111.  353;  8t.  L.,  A.  &  T.  H.  R.  R.  v.  Montgomery,  39  111.  335;  C.&A. 
It.  R.  v.  Scott,  42  111.  132;  Buckingham  v.  Fisher,  70  111.  121;  Broad- 
well  v.  Howard,  77  111.  305;  Bailey  v.Bensley,  87  111.  556;  German  Nat. 
Bank  v.  Meadowcroft,  95  111.  124. 

2746.  Sampler's  ticket  held  not  a  warehouse  receipt.    P.&P.U. 
R.  R.  v.  Buckley,  114  111.  337. 

2747.  DELIVERY  OF  PROPERTY.  §  11.  On  the  return  of 
any  warehouse  receipt  issued  by  him,  properly  indorsed,  and 
the  tender  of  all  proper  charges  upon  the  property  repre- 
sented by  it,  such  property  shall  be  immediately  deliverable 
to  the  holder  of  such  receipt,  and  it  shall  not  be  subject  to 
any  further  charges  for  storage,  after  demand  for  such  deliv- 
.ery  shall  have  been  made.  Unless  the  property  represented 
by  such  receipt  shall  be  delivered  within  two  business  hours 
after  such  demand  shall  have  been  made,  the  warehouseman 
in  default  shall  be  liable  to  the  owner  of  such  receipt  for 
damages  for  such  default,  in  the  sum  of  one  cent  per  bushel, 
and  in  addition  thereto,  one  cent  per  bushel  for  each  and 
every  day  of  such  neglect  or  refusal  to  deliver:  Provided,  no 
warehouseman  shall  be  held  to  be  in  default  in  delivering  if 
the  property  is  delivered  in  the  order  demanded,  and  as  rap- 
idly as  due  diligence,  care  and  prudence  will  justify. 

2748.  Warehouseman  has  a  lien  for  storage.    Low  v.  Martin,  18 
111.  286. 

2748«.  Issue  of  receipts  for  grain  not  in  store,  does  not  deprive 
him  of  his  lien  for  that  actually  stored.  Ib.  If  he  permits  the  grain 
to  be  removed  before  charges  are  paid,  he  does  not  lose  his  right  to 
recover  of  the  holder  of  the  receipt.  Purchaser  takes  subject  to  lien. 
Cole  v.  Tyng,  24  111.  99. 

2749.  Purchaser  of  receipt  with  notice  that  it  is  chargeable  for 
storage  becomes  liable  for  charges.    Ib. 

2750.  Such  lien  is  lost  by  a  delivery  of  the  goods,  and  will  not 
revive  in  case  the  goods  accidentally  be  returned  to  warehouseman's 
possession.    Hale  v.  Barrett,  26  111.  195. 

2751.  Where  goods  of  different  owners  are  shipped  together  the 


AND  EMINENT  DOMAIN.  339 

consignee  will  have  no  lien  on  the  goods  of  one  for  the  charges  due  on 
those  of  the  other.    76. 

2752.  Lien  lost  by  agreement.    Board  of  Trade  v.  Buckingham, 
65  111.  72. 

2753.  Remedy  against  warehouseman  for  non-delivery.  -  Leonard 
v.  Dunton,  51  111.  482. 

2754.  Warehouse  receipts  as  evidence  of  ownership.    Cool  v.  Phil- 
lips, 66  111.  216;  Broadwell  v.  Howard,  77  111.  305. 

2755.  POSTING  GRAIN  IN  STOKE — STATEMENT  TO  REGIS- 
TRAR— DAILY  PUBLICATIONS — CANCELED  RECEIPTS.      §  12.   The 
warehousemen  of  every  public  warehouse  of  class  A  shall,  on 
or  before  Tuesday  morning  of  each  week,  cause  to  be  made 
out,  and  shall  keep  posted  up  in  the  business  office  of  his 
warehouse,  in  a  conspicuous  place,  a  statement  of  the  amount 
of  each  kind  and  grade  of  grain  in  store  in  his  warehouse  at 
the  close  of  business  on  the  previous  Saturday;  and  shall,  also, 
on  each  Tuesday  morning,  render  a  similar  statement,  made 
under  oath  before  some  officer  authorized  by  law  to  administer 
oaths,  by  one  of  the  principal  owners  or  operators  thereof,  or 
by  the  bookkeeper  thereof,  having  personal  knowledge  of  the 
facts,  to   the  warehouse  registrar  appointed  as  hereinafter 
provided.     They  shall  also  be  required  to  furnish  daily,  to 
the  same  registrar,  a'  correct  statement  of  the  amount  of  each 
kind  and  grade  of  grain  received  in  store  in  such  warehouse 
on  the  previous  day;  also  the  amount  of  each  kind  and  grade 
of  grain  delivered  or  shipped  by  such  warehouseman  during 
the  previous  day,  and  what  warehouse  receipts  have  been 
canceled,  upon  which  the  grain  has  been  delivered  on  such 
day,  giving  the  number  of  each  receipt,  and  amount,  kind  and 
grade  of  grain  received  and  shipped  upon  each;  also,  how 
much  grain,  if  any,  was  so  delivered  or  shipped,  and  the  kind 
and  grade  of  it,  for  which  warehouse  receipts  had  not  been 
issued,  and  when  and  how  such  unreceipted  grain  was  re- 
ceived by  them ;  the  aggregate  of  such  reported  cancellations 
and  delivery  of  unreceipted  grain,  corresponding  in  amount, 
kind  and  grade  with  the  amount  so  reported,  delivered  or 
shipped.     They  shall   also,  at  the  same  time,  report  what 
receipts,  if  any,  have  been  canceled  and  new  ones  issued  in 
their  stead,  as  herein  provided  for.     And  the  warehouseman 
making  such  statements,  shall,  in  addition,  furnish  the  said 
registrar  any  further  information,  regarding  receipts  issued 
or  canceled,  that  may  be  necessary  to  enable  him  to  keep  a 
full  and  correct  record  of  all  receipts  issued  and  canceled, 
and  of  grain  received  and  delivered.     [§  13,  repealed.] 

2756.  CHIEF  INSPECTOR.     §14.     1.  It  shall  be  the  duty 
of  the  governor  to  appoint  by,  and  with  the  advice  and  con- 
sent of  the  senate,  a  suitable  person,  who  shall  not  be  a  mem- 
ber of  the  board  of  trade,  and  who  shall  not  be  interested 


340  EAILROADS,  WAREHOUSES, 

either  directly  or  indirectly,  in  any  warehouse  in  this  state, 
a  chief  inspector  of  grain,  who  shall  hold  his  office  for  the 
term  of  two  years,  unless  sooner  removed  as  hereinafter  pro- 
vided, for  in  every  city  or  county  in  which  is  located  a  ware- 
house of  class  A,  or  class  B:  Provided,  that  no  such  grain 
inspector  for  cities  or  counties  in  which  are  located  ware- 
houses of  class  B,  shall  be  appointed,  except  upon  the  appli- 
cation and  petition  of  two  or  more  warehousemen  doing  a 
separate  and  distinct  business,  residing  and  doing  business  in 
such  city  or  county,  and  when  there  shall  be  a  legally  organ- 
ized board  of  trade  in  such  cities  or  counties;  such  applica- 
tion and  petition  shall  be  officially  endorsed  by  such  board  of 
trade,  before  such  application  and  petition  shall  be  granted. 

2.  His  DUTIES.     It  shall  be  the  duty  of  such  chief  inspec- 
tor of  grain  to  have  a  general  supervision  of  the  inspection 
of  grain  as  required  by  this  act  or  laws  of  this  state,  under 
the  advice  and  immediate  direction  of  the  board  of  commis- 
sioners of  railroads  and  warehouses. 

3.  ASSISTANT  INSPECTORS.     The  said  chief  inspector  shall 
be  authorized  to  nominate  to  the  commissioners  of  railroads 
and  warehouses,  such  suitable  persons,  in  sufficient  number, 
as  may  be  deemed  qualified  for  assistant  inspectors,  who  shall 
not  be  members  of  the  board  of  trade,  nor  interested  in  any 
warehouse,  and  also  such  other  employes  as  may  be  necessary 
to  properly  conduct  the  business  of  his  office;  and  the  said 
commissioners  are  authorized  to  make  such  appointments. 

4  CHIEF  INSPECTOR'S  OATH  AND  BOND.  The  chief  inspec- 
tor shall  upon  entering  upon  the  duties  of  his  office,  be  re- 
quired to  take  an  oath,  as  in  cases  of  other  officers,  and  he 
shall  execute  a  bond  to  the  people  of  the  state  of  Illinois,  in 
the  penal  sum  of  fifty  thousand  dollars  when  appointed  for 
any  city  in  which  is  located  a  warehouse  of  class  A,  and  ten 
thousand  dollars,  when  appointed  for  any  other  city  or  county 
with  sureties  to  be  approved  by  the  board  of  commissioners 
of  railroads  and  warehouses,  with  a  condition  therein  that  he 
will  faithfully  and  strictly  discharge  the  duties  of  his  said 
office  of  inspector  according  to  law,  and  the  rules  and  regula- 
tions prescribing  his  duties;  and  that  he  will  pay  all  damages 
to  any  person  or  persons  who  may  be  injured  by  reason  of 
his  neglect,  refusal  or  failure  to  comply  with  law,  and  the 
rules  and  regulations  aforesaid. 

5.  ASSISTANT  INSPECTOR'S  OATH  AND  BOND.  And  each 
assistant  inspector  shall  take  a  like  oath;  execute  a  bond  in 
the  penal  sum  of  five  thousand  dollars,  with  like  conditions, 
and  to  be  approved  in  like  [manner  as  is  provided  in  case 
of  the  chief  inspector,  which  said  several  bonds  shall  be  filed 
in  the  office  of  said  commissioner;  and  suit  may  be  brought 


AND  EMINENT  DOMAIN.  341 

upon  said  bond  or  bonds  in  any  court  having  jurisdiction 
thereof,  in  the  county  where  the  plaintiff  or  defendant  re- 
sides, for  the  use  of  the  person  or  persons  injured. 

6.  KULES  or  INSPECTION — CHARGES.     The  chief  inspector 
of  grain,  and  all  assistant  inspectors  of  grain,  and  other  em- 
ployes in  connection  therewith,  shall  be  governed  in  their 
respective  duties  by  such  rules  and  regulations  as  may  be 
prescribed  by  the  board  of  commissioners  of  railroads  and 
warehouses;   and  tlje  said  board  of  commissioners  shall  have 
full  power  to  make  all  proper  rules  and  regulations  for  the 
inspection  of  grain;   and  shall,  also,  have  power  to  fix  the 
rate  of  charges  for  the  inspection  of  grain,  and  the  manner 
in  which  the  same  shall  be  collected;  which  charges  shall  be 
regulated  in  such  a  manner  as  will  in  the  judgment  of  the 
commissioners,  produce  sufficient  revenue  to  meet  the  neces- 
sary expenses  of  the  service  of  inspection,  and  no  more. 

7.  PAY  OF  INSPECTOR  AND  ASSISTANTS,  ETC.     It  shall  be  the 
duty  of  the  said  board  of  commissioners  to  fix  the  amount  of 
compensation  to  be  paid  to  the  chief  inspector,  assistant  in- 
spectors, and  all  other  persons  employed  in  the  inspection 
service,  and  prescribe  the  time  and  manner  of  their  pay- 
ment. 

8.  APPOINTMENT  OF  REGISTRAR  AND  ASSISTANTS.    The  said 
board   of  commissioners  of  railroads  and  warehouses    are 
hereby  authorized  to  appoint  a  suitable  person  as  warehouse 
registrar,  and  such  assistants  as  may  be  deemed  necessary 
to  perform  the  duties  imposed  upon  such  registrar  by  the  pro- 
visions of  this  act. 

9.  GENERAL  SUPERVISION — PAY,  ETC.     The  said  board  of 
commissioners  shall  have  and  exercise  a  general  supervision 
and  control  of  such  appointees;  shall  prescribe  their  respec- 
tive duties;  shall  fix  the  amount  of  their  compensation,  and 
the  time  and  manner  of  its  payment. 

10.  REMOVAL  FROM  OFFICE.     Upon  the  complaint,  in  writ- 
ing, of  any  person,  to  the  said  board  of  commissioners,  sup- 
ported by  reasonable  and  satisfactory  proof,  that  any  person 
appointed  or  employed  under  the  provisions  of  this  section 
has  violated  any  of  the  rules  prescribed  for  his  government, 
has  been  guilty  of  any  improper  official  act,  or  has  been 
found  insufficient  or  incompetent  for  the  duties  of  his  posi- 
tion,  such  person  shall  be  immediately  removed  from  his 
office  or  employment  by  the  same  authority  that  appointed 
him;  and  his  place  shall  be  filled,  if  necessary,  by  a  new  ap- 
pointment; or,  in  case  it  shall  be  deemed  necessary  to  reduce 
the  number  of  persons  so  appointed  or  employed,  their  term 
of  service  shall  cease  under  the  orders  of  the  same  authority 
by  which  they  were  appointed  or  employed. 


342  KAILROADS,  WAREHOUSES, 

11.  EXPENSES,  HOW  PAID.  All  necessary  expenses  incident 
to  the  inspection  of  grain,  and  to  the  office  of  registrar  eco- 
nomically administered,  including  the  rent  of  suitable  offices, 
shall  be  deemed  expenses  of  the  inspection  service,  and  shall 
be  included  in  the  estimate  of  expenses  of  such  inspection 
service,  and  shall  be  paid  from  the  funds  collected  for  the 
same.  [As  amended  by  act  approved  and  in  force  May  28, 
1879.  L.  1879,  p.  226.] 

2757.  It  is  competent  for  the  legislature  to  delegate  to  railroad  and 
warehouse  commissioners  the  power  to  control  the  subject  of  the  in- 
spection of  grain.    People  v.  Harper,  91  111.  357. 

2758.  The  expenses  of  the  inspection  of  grain  may  be  required  to 
be  paid  by  those  presumably  benefited  by  it.    Ib. 

2759.  Although  the  board  of  commissioners  are  only  authorized  to 
fix  the  fees  for  inspection  at  such  rates  as  may  be  necessary  to  meet 
the  expenses,  yet  if  more  is  collected  than  necessary,  the  chief  inspec- 
tor cannot  retain  the  same.    Ib. 

2760.  INSPECTOR,  APPOINTMENT  OF.    There  can  be  no  legally 
appointed  inspectors  of  grain  except  they  are  appointed  by  the  gov- 
ernor in  the  manner  pointed  out  in  the  amendatory  act  of  1879,  §  14. 

2761.  Sureties  on  chief  inspector's  bond  are  not  responsible  for 
moneys  collected  by  him  for  inspection,  where  the  duty  of  collecting 
and  taking  care  of  the  same,  is  not  imposed  on  him  before  the  execu- 
tion of  his  bond.    People  v.  Tomphins,  74  111.  482. 

2762.  The  people  of  the  state  of  Illinois  are  proper  parties  plaintiff 
in  an  action  upon  such  bond,  although  the  sum  when  recovered  must 
be  paid  into  the  inspection  fund.    People  v.  Harper,  91  111.  357. 

2763.  The  allegation  of  the  expiration  of  the  principal's  term  of 
office  and  the  appointment  of  his  successor,  is  sufficient  in  a  declara- 
tion upon  inspector's  bond,  without  showing  the  qualification  of  the 
successor.    Ib. 

2764.  KATES  OF  STORAGE.  §  15.  Every  warehouseman 
of  public  warehouses  of  class  A  shall  be  required,  during  the 
the  first  week  in  January  of  each  year,  to  publish  in  one  or 
more  of  the  newspapers  (daily,  if  there  be  such,)  published 
in  the  city  in  which  such  warehouse  is  situated,  a  table  or 
schedule  of  rates  for  the  storage  of  grain  in  his  warehouse 
during  the  ensuing  year,  which  rates  shall  not  be  increased 
(except  as  provided  for  in  section  (1C)  of  this  act)  during 
the  year;  and  such  published  rates,  or  any  published  reduc- 
tion of  them,  shall  apply  to  all  grain  received  into  such  ware- 
house from  any  person  or  source,  and  no  discrimination  shall 
be  made  directly  or  indirectly,  for  or  against  any  charges 
made  by  such  warehouseman  for  the  storage  of  grain.  The 
maximum  charge  for  storage  and  handling  of  grain,  including 
the  cost  of  receiving  and  delivering,  shall  be,  for  the  first  ten 
days  or  part  thereof,  one  and  one-quarter  (1^)  cents  per 
bushel,  and  for  each  ten  days,  or  part  thereof  after  the  first 
ten  days  one-half  of  one  cent  per  bushel :  Provided,  however, 
that  grain  damp,  or  liable  to  early  damage,  as  indicated  by 
its  inspection  when  received,  may  be  subject  to  two  cents  per 


AND  EMINENT  DOMAIN.  343 

bushel  storage,  for  the  first  ten  days,  and  for  each  additional 
five  days,  or  part  thereof  not  exceeding  one-half  of  one  cent 
per  bushel:  Provided,  further,  that  where  grain  has  been 
received  in  any  such  warehouse  prior  to  the  first  day  of 
March,  1877,  under  any  express  or  implied  contract  to  pay 
and  receive  rates  of  storage  different  from  those  prescribed 
by  law,  or  where  it  has  been  received  under  any  custom  or 
usage  prior  to  said  day  to  pay  or  receive  rates  of  storage 
different  from  the  rates  fixed  by  law,  it  shall  be  lawful  for 
any  owner  or  manager  of  such  warehouse  to  receive  and  col- 
lect such  agreed  or  customary  rates.  [As  amended  by  act 
approved  May  21,  1877.  In  force  July  1,  1877.  L.  1877, 
p.  169.] 

2705.  As  to  the  constitutional  power  of  the  legislature  to  fix  and 
regulate  charges.  Munn  v.  People,  69  111.  80;  Munn  v.  Illinois,  94  U. 
S.  113;  People  v.  Harper,  91  111.  357. 

2766.  LOSS  BY  FIRE  HEATING — ORDER  OF  DELIVERY- 
GRAIN  OUT  OF  CONDITION.  §  16.  No  public  warehouseman 
shall  be  held  responsible  for  any  loss  or  damage  to  property 
by  fire,  while  in  his  custody,  provided  reasonable  care  and 
vigilance  be  exercised  to  protect  and  preserve  the  same;  nor 
shall  he  be  held  liable  for  damage  to  grain  by  heating,  if  it 
can  be  shown  that  he  has  exercised  proper  care  in  handling 
and  storing  the  same,  and  that  such  heating  or  damage  was 
the  result  of  causes  beyond  his  control;  and,  in  order  that 
no  injustice  may  result  to  the  holder  of  grain  in  any  public 
warehouse  of  classes  A  or  B,  it  shall  be  deemed  the 
duty  of  such  warehouseman  to  dispose  of,  by  delivery  or 
shipping,  in  the  ordinary  and  legal  manner  of  so  deliv- 
ering, that  grain  of  any  particular  grade  which  was  first 
received  by  them,  or  which  has  been  for  the  longest  time 
in  store  in  his  warehouse;  and,  unless  public  notice  has 
been  given  that  some  portion  of  the  grain  in  his  warehouse  is 
is  out  of  condition,  or  becoming  so,  such  warehouseman  shall 
deliver  grain  of  quality  equal  to  that  received  by  him,  on  all 
receipts  as  presented.  In  case,  however,  any  warehouseman 
of  classes  A  or  B  shall  discover  that  any  portion  of  the 
grain  in  his  warehouse  is  out  of  condition,  or  becoming  so, 
and  it  is  not  in  his  power  to  preserve  the  same,  he  shall 
immediately  give  public  notice,  by  advertisement  in  a  daily 
newspaper  in  the  city  in  which  such  warehouse  is  situated, 
and  by  posting  a  notice  in  the  most  public  place  (for  such 
a  purpose )  in  such  city,  of  its  actual  condition,  as  near  as  he 
can  ascertain  it;  shall  state  in  such  notice  the  kind  and 
grade  of  the  grain,  and  the  bins  in  which  it  is  stored ;  and 
shall  also  state  in  such  notice  the  receipts  outstanding  upon 
which  such  grain  will  be  delivered,  giving  the  numbers, 
amounts  and  dates  of  each — which  receipts  shall  be  those  of 


344  KAILROADS,  WAREHOUSES, 

the  oldest  dates  then  in  circulation  or  uncanceled,  the  grain 
represented  by  which  has  not  previously  been  declared  or 
receipted  for  as  out  of  condition,  or  if  the  grain  longest  in 
store  has  not  been  receipted  for,  he  shall  so  state,  and  shall 
give  the  name  of  the  party  for  whom  such  grain  was  stored, 
the  date  it  was  received,  and  the  amount  of  it;  and  the 
enumeration  of  receipts  and  identification  of  grain  so  dis- 
credited shall  embrace,  as  near  as  may  be,  as  great  a  quan- 
tity of  grain  as  is  contained  in  such  bins;  and  such  grain 
shall  be  delivered  upon  the  return  and  cancellation  of  the 
receipts,  and  the  unreceipted  grain  upon  the  request  of  the 
owner  or  person  in  charge  thereof.  Nothing  herein  con- 
tained shall  he  held  to  relieve  the  said  warehouseman  from 
exercising  proper  care  and  vigilance  in  preserving  such 
grain  after  such  publication  of  its  condition;  but  such  grain 
shall  be  kept  separate  and  apart  from  all  direct  contact 
with  other  grain,  and  shall  not  be  mixed  with  other  grain 
while  in  store  in  such  warehouse.  Any  warehouseman  guilty 
of  any  act  or  neglect,  the  effect  of  which  is  to  depreciate  prop- 
erty stored  in  the  warehouse  under  his  control,  shall  he  held  re- 
sponsible as  at  common  law,  or  upon  the  bond  of  such  ware- 
houseman, and  in  addition  thereto,  the  license  of  such 
warehouseman,  if  his  warehouse  be  of  class  A,  shall  be  re- 
voked. Nothing  in  this  section  shall  be  so  construed  as  to 
permit  any  warehouseman  to  deliver  any  grain  stored  in  a 
special  bin,  or  by  itself,  as  provided  in  this  act,  to  any  but 
the  owner  of  the  lot,  whether  the  same  be  represented  by  a 
warehouse  receipt  or  otherwise.  In  case  the  grain  declared 
out  of  condition,  as  herein  provided  for,  shall  [not]  be 
removed  from  store  by  the  owner  thereof  within  two  months 
from  the  date  of  the  notice  of  its  being  out  of  condition,  it 
shall  be  lawful  for  the  warehouseman  where  the  grain  is 
stored  to  sell  the  same  at  public  auction,  for  account  of  said 
owner,  by  giving  ten  days'  public  notice,  by  advertisement  in 
a  newspaper  ( daily,  if  there  he  such ),  published  in  the  city 
or  town  where  such  warehouse  is  located. 

2767.  TAMPERING  WITH  GRAIN  STORED — PRIVATE  BINS- 
DRYING,  CLEANING,  MOVING.  §  17.  It  shall  not  be  lawful  for 
any  public  warehouseman  to  mix  any  grain  of  different  grades 
together,  or  to  select  different  qualities  of  the  same  grade  for 
the  purpose  of  storing  or  delivering  the  same,  nor  shall  he 
attempt  to  deliver  grain  of  one  grade  for  another,  or  in  any 
way  tamper  with  grain  while  in  his  possession  or  custody, 
with  a  view  of  securing  any  profit  to  himself  or  any  other 
person;  and  in  no  case,  even  of  grain  stored  in  a  separate  bin, 
shall  he  be  permitted  to  mix  grain  of  different  grades  together 
while  in  store.  He  may,  however,  on  request  of  the  owner 
of  any  grain  stored  in  a  private  bin,  be  permitted  to  dry, 


AND  EMINENT  DOMAIN.  345 

clean,  or  otherwise  improve  the  condition  or  value  of  any 
such  lot  of  grain;  but  in  such  case  it  shall  only  be  delivered 
as  such  separate  lot,  or  as  the  grade  it  was  originally  when 
received  by  him,  without  reference  to  the  grade  it  may  be  as 
improved  by  such  process  of  drying  or  cleaning.  Nothing 
in  this  section,  however,  shall  prevent  any  warehouseman 
from  moving  grain  while  within  his  warehouse  for  its  preser- 
vation or  safe  keeping. 

2768.  EXAMINATION  OF  GRAIN  AND  SCALES — INCORRECT 
SCALES.     §  18.  All  persons  owning  property,  or  who  may  be 
interested  in  the  same,  in  any  public  warehouse,  and  all  duly 
authorized  inspectors  of  such  property,  shall  at  all   times, 
during  ordinary  business  hours,  be  at  full  liberty  to  examine 
any  and  all  property  stored  in  any  public  warehouse  in  this 
state,  and  all  proper  facilities  shall  be  extended  to  such  per- 
son by  the  warehouseman,  his  agents  and  servants,  for  an 
examination ;  and  all  parts  of  public  warehouses  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested 
in  property  stored  therein,  or  of  any  authorized  inspector  of 
such  property.     And  all  scales  used  for  the  weighing  of  prop- 
erty in  public  warehouses  shall  be   subject  to  examination 
and  test  by  any  duly  authorized  inspector  or  sealer  of  weights 
and  measures,  at  any  time  when  required  by  any  person  or 
persons,  agent  or  agents,  whose  property  has  been  or  is  to  be 
weighed  on  such  scales  -the  expense  of  such  test  by  an  in- 
spector or  sealer  to  be  paid  by  the  warehouse  proprietor  if 
the  scales  are  found  incorrect,  but  not  otherwise.     Any  ware- 
houseman who  may  be  guilty  of   continuing  to  use  scales 
found  to  be  in  an  imperfect  or  incorrect  condition  by  such 
examination  and  test,  until  the  same  shall  have  been  pro- 
nounced  correct  and  properly  sealed,  shall  be  liable  to  be 
proceeded  against  as  hereinafter  provided. 

2769.  GRAIN  MUST  BE  INSPECTED.     §  19.  In  all  places 
where  there  are  legally  appointed  inspectors   of   grain,  no 
proprietor  or  manager  of  a  public  warehouse  of  class  B  shall 
be  permitted  to  receive  any  grain  and  mix  the  same  with  the 
grain  of  other  owners,  in  the  storage  thereof,  until  the  same 
shall  have  been  inspected  and  graded  by  said  inspector. 

2770.  This  section  applies  only  to  places  where  there  are  inspectors 
of  grain  appointed  under  this  act.    Inspectors  appointed  by  the  board 
of  trade  are  not  legally  appointed  under  this  section.    E.  St.  L. Board 
of  Trade  v.  People,  105  111.  382. 

2771.  ASSUMING  TO  ACT  AS  INSPECTOR.  §  20.  Any  person 
who  shall  assume  to  act  as  an  inspector  of  grain,  who  has  not 
first  been  so  appointed  and  sworn,  shall  be  held  to  be  an  im- 
poster,  and  shall  be  punished  by  a  fine  of  not  less  than  $50 
nor  more  than  $100  for  each  and  every  attempt  to  so  inspect 
grain,  to  be  recovered  before  a  justice  of  the  peace. 


346  KAILBOADS,  WAREHOUSES, 

2772.  The  offense  created  can  only  occur  in  a  place  where  there  are 
legally  appointed  inspectors  under  this  law.    In  the  absence  of  such 
appointment,  any  person  may  lawfully  act  as  inspector.    Dutcher  v. 
People,  11  Bradw.  312;  E.  St.  L.  Board  of  Trade  v.  People,  105  111.  382. 

2773.  MISCONDUCT  OF  INSPECTOR — INFLUENCING.      Any 
duly  authorized  inspector  of   grain  who   shall  be  guilty  of 
neglect  of  duty,  or  who  shall  knowingly  or  carelessly  inspect 
or  grade  any  grain  improperly,  or  who  shall  accept  any  money 
or  other  consideration,  directly  or  indirectly,  for  any  neglect 
of  duty,  or  the  improper  performance  of  any  duty  as  such 
inspector  of  grain;  and  any  person  who  shall  improperly  in- 
fluence  any  inspector  of  grain   in  the   performance  of  his 
duties  as  such  inspector,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction,  shall  be  fined  in  a  sum  not  less 
than  100  nor  more  than  $1,000,  in  the  discretion  of  the  court, 
or  shall  be  imprisoned  in  the  county  jail  not  less  than  three 
nor  more  than  twelve  months,  or  both,  in  the  discretion  of 
the  court. 

2774.  OWNER,  ETC.,  DISSATISFIED  WITH  INSPECTION — HIS 
RIGHTS.     §  21.  In  case  any  owner  or  consignee  of  grain  shall 
be  dissatisfied  with  the  inspection  of   any  lot  of   grain,  or 
shall,  from  any  cause,  desire  to  receive  his  property  without 
its  passing  into  store,  he  shall  be  at  liberty  to  have  the  same 
withheld  from  going  into  any  public  warehouse  (whether  the 
property  may  have  previously  been  consigned  to  such  ware- 
house or  not),  by  giving  notice  to  the  person  or  corporation 
in  whose  possession  it  may  be  at  the  time  of  giving  such 
notice;  and  such  grain   shall  be   withheld  from  going  into 
store,  and  be  delivered  to  him,  subject  only  to  such  proper 
charges  as  may  be  a  lien  upon  it  prior  to  such  notice.     The 
grain,  if  in  railroad  cars,  to  be  removed  therefrom  by  such 
owner  or  consignee  within  twenty-four  hours  after  such  notice 
has  been  given  to  the  railroad  company  having  it  in  posses- 
sion:    Provided,  such  railroad  company  place  the  same  in  a 
proper  and  convenient  place  for  unloading;  and  any  person 
or  corporation  refusing  to  allow  such  owner  or  consignee  to 
so  receive  his  grain  shall  be  deemed  guilty  of  conversion,  and 
shall  be  liable  to  pay  such  owner  or  consignee  double  the 
value  of  the  property  so  converted.     Notice  that  such  grain 
is  not  to  be  delivered  into  store  may  also  be  given  to  the  pro- 
prietor  or  manager  of   any  warehouse  into  which  it  would 
otherwise  have  been  delivered,  and  if,  after  such  notice,  it  be 
taken  into  store  in  such  warehouse,  the  proprietor  or  mana- 
ger of  such  warehouse  shall  be  liable  to  the  owner  of  such 
grain  for  double  its  market  value. 

2775.  COMBINATION.     §  22.  It  shall  be  unlawful  for  any 
proprietor,  lessee  or  manager  of  any  public  warehouse,  to 
enter  into  any  contract,  agreement,  understanding,  or  combi- 


AND  EMINENT  DOMAIN.  347 

nation,  with  any  railroad  company  or  other  corporation,  or 
with  any  individual  or  individuals,  by  which  the  property  of 
any  person  is  to  be  delivered  to  any  public  warehouse  for 
storage  or  for  any  other  purpose,  contrary  to  the  direction  of 
the  owner,  his  agent,  or  consignee.  Any  violation  of  this  sec- 
tion shall  subject  the  offender  to  be  proceeded  against  as  pro- 
vided in  section  23  of  this  act. 

2776.  SUITS.     §  23.  If  any  warehouseman  of  class  A 
shall  be  guilty  of  a  violation  of  any  of  the  provisions  of  this 
act,  it  shall  be  lawful  for  any  person  injured  by  such  viola- 
tion to  bring  suit  in  any  court  of  competent  jurisdiction,  upon 
the  bond  of  such  warehouseman,  in  the  name  of  the  people  of 
the  state  of  Illinois,  to  the  use  of  such  person.     In  all  crimi- 
nal prosecutions  against  a  warehouseman,  for  the  violation  of 
any  of  the  provisions  of  this  act,  it  shall  be  the  duty  of  the 
prosecuting  attorney  of  the  county  in  which  such  prosecution 
is  brought,  to  prosecute  the  same  to  a  final  issue,  in  the  name 
of  and  on  behalf  of  the  people  of  the  state  of  Illinois. 

2777.  WAKEHOUSE  RECEIPT    NEGOTIABLE.     §24.  Ware- 
house receipts  for  property  stored  in  any  class  of  public  ware- 
houses, as   herein   described,  shall  be  transferable   by   the 
indorsement  of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  shall  be  deemed  a  valid  trans- 
fer of  the  property  represented  by  such  receipt,  and  may  be 
made  either  in  blank  or  to  the  order  of  another.     All  ware- 
house receipts  for  property  stored  in  public  warehouses  of 
class  C  shall  distinctly  state  on  their  face  the  brand  or  dis- 
tinguishing marks  upon  such  property. 

2778.  Delivery  of  receipt  has  the  same  effect  in  transferring  the 
title  to  the  grain  as  the  delivery  of  the  property  itself,  and  no  more 
nor  less.    Burton  v.  Curyea,  40  111.  320. 

2779.  Tender  of  warehouse  receipt  by  the  vendor  of  grain,  is  a 
sufficient  tender  of  the  grain,  unless  vendee  insists  on  seeing  the  grain. 
McPherson  v.  Gale,  40  111.  368. 

2780.  By  the  act  incorporating  the  Chicago  Dock  company,  a 
warehouse  receipt  issued  by  that  company,  is  made  negotiable,  and  as 
such  it  absolutely  vests  in  the  holder  the  title  to  the  property  specified 
in  it.    Ch.  Dock  Co.  v.  Foster,  48  111.  507. 

2781.  Receipt  being  the  contract  of  the  parties  cannot  be  varied 
by  parol  evidence.    Leonard  v.  Dunton,  51  111.  482. 

2782.  Remedy  against  warehouseman  refusing  to  deliver  grain. 
Leonard  v.  Dunton,  51  111.  482;  Bailey  v.  Bensley,  87  111.  556;  German 
Nat.  Bank  v.  Meadowcroft,  95  111.  124;  Canadian  Bank  v.  McCrea. 
106  111.  281. 

2783.  Measure  of  damages  for  failure  to  deliver  grain.    Leonard 
v.  Dunton,  51  111.  482. 

2784.  The  addition  of  these  words  at  end  of  the  receipt:  "Subject 
to  their  order,  for  all  advances  of  money  on  the  same,"  will  not  con- 
vert it  into  a  mere  pledge  and  render  the  grain  liable  to  an  execution 
against  the  party  giving  it,  issued  after  the  date  of  the  receipt.    Cool 
v.  Carmichael,  66  111.  216. 


348  KAILKOADS,  WAREHOUSES, 

2785.  Where  warehouseman  purchases  grain  stored  with  him  of 
the  owner  for  another,  and  takes  up  his  receipt  and  gives  another  to 
the  person  for  whom  he  bought  and  whose  money  he  used:  Held,  that 
the  grain  was  not  liable  to  be  taken  on  execution  against  the  ware- 
houseman.   Broadwell  v.  Howard,  77  111.  305. 

2786.  Commission  merchant  in  Chicago  may,  by  a  custom  of  trade 
obtaining  there,  dispose  of  warehouse  receipts  for  grain  consigned  to 
him,  provided  he  keeps  on  hand  other  like  receipts  for  the  same  quan- 
tity and  quality  of  grain.    The  receipts  do  not  represent  the  consignor's 
property.    They  are  merely  evidences  of  a  debt  to  the  consignee. 
Bailey  v.  Bensley,  87  111.  556. 

2787.  Person  succeeding  to  the  possession  of  warehouse  and  the 
grain  stored  therein,  becomes  liable  to  the  holders  of  warehouse  re- 
ceipts, and  subject  to  the  same  remedies  as  the  former  proprietor. 
German  Nat.  Bank  v.  Meadowcroft,  95  111.  124 . 

2788.  Statute  relating  to  negotiable  instruments  does  not  embrace 
warehouse  receipts.    The  title  vested  in  the  assignee  is  not  the  same 
as  that  passed  to  the  assignee  of  a  note.    Canadian  Bank  v.  McCrea, 
106  111.  281. 

2789.  By  this  section  the  indorsement  of  a  warehouse  receipt  is 
made  evidence  of  a  transfer  of  the  grain  it  represents,  the  same  as  the 
actual  delivery  of  the  property  itself.    It  passes  the  assignee's'  actual 
title  and  no  more.    Ib. 

2790.  The  indorsement  and  delivery  of  a  warehouse  receipt  for 
flour  not  only  transfers  the  title  to  the  flour  to  the  assignee,  but  also 
gives  him  a  right  of  action  for  any  breach  of  duty  by  the  warehouse- 
man at  any  time  during  the  bailment.    Sargent  v.  Central  Warehouse 
Co.,  15  Bradw.  553. 

2791.  An  indorsement  in  blank  of  a  warehouse  receipt  by  the  seller 
authorizes  the  purchaser  to  write  over  the  indorsement  only  a  contract 
of  mere  assignment  of  the  legal  title,  unlike  the  case  of  a  negotiable 
note.    Mida  v.  Qeissmann,  17  Bradw.  207. 

2792.  As  to  liability  of  assignor  to  assignee,  where  the  warehouse- 
man fails.    Mida  v.  (teissmann,  17  Bradw.  207.    See  also  Hide  & 
Leather  Nat.  Bank  v.  West,  20  Bradw.  61. 

2793.  FALSE  RECEIPTS  —  FRAUDULENT  REMOVAL.    §25. 
Any  warehouseman  of  any  public  warehouse  who  shall  be 
guilty  of  issuing  any  warehouse  receipt  for  any  property  not 
actually  in  store  at  the  time  of  issuing  such  receipt,  or  who 
shall  be  guilty  of  issuing  any  warehouse  receipt  in  any  res- 
pect fraudulent  in  its  character,  either  as  to  its  date  or  the 
quantity,  quality,  or  inspected  grade  of  such  property,  or 
who  shall  remove  any  property  from  store  (except  to  preserve 
it  from  fire  or  other  sudden  danger),  without  the  return  and 
cancellation  of  any  and  all  outstanding  receipts  that  may 
have  been  issued  to  represent   such   property,  shall,  when 
convicted  thereof,  be  deemed  guilty  of  a  crime,  and  shall 
suffer,  in  addition  to  any  other  penalties  prescribed  by  this 
act,  imprisonment  in  the  penitentiary  for  not  less  than  one, 
and  not  more  than   ten  years.     [Restricted   as   to   receipts 
issued  before  Oct.  8,  1871.     L.  1871-2,  p.  774.] 

2794.  COMMON  LAW  REMEDY  SAVED.     §  26.  Nothing  in 


AND  EMINENT  DOMAIN.  349 

this  act  shall  deprive  any  person  of  any  common  law  remedy 
now  existing. 

2794a.  PRINTED  COPY  OF  ACT  POSTED.  §  27.  All  propri- 
etors or  managers  of  public  warehouses  shall  keep  posted  up 
at  all  times,  in  a  conspicuous  place  in  their  business  offices, 
and  in  each  of  their  warehouses,  a  printed  copy  of  this  act. 

2795.  BEPEAL.     §  28.  All  acts  or  parts  of  acts  inconsist- 
ent with  this  act  are  hereby  repealed. 

Au  act  to  amend  an  act  entitled  "An  act  to  regulate  public  warehouses  and  tiie  ware" 
housing  and  inspection  of  grain,  and  to  give  effect  to  article  thirteen  (13)  of  the  constitu" 
tion  of  the  state,"  approved  April  25,  1871,  in  force  July  1;  1871,  and  to  establish  a  commit" 
tee  of  appeal,  and  prescribe  their  duties.  Approved  April  15. 1873.  In  force  July  1, 1873- 
[Laws  of  1873,  p.  189;  R.  S.  1887,  p.  1034;  S.  &  C.  p.  1H75;  Cothran,  p.  1182.  j 

2796.  COMMISSIONERS  TO  ESTABLISH  GRADES.     §  1.  Be  it 
enacted  by  the  people  of  the  state  of  Illinois,  represented  in 
the  general  assembly,    That  the  board  of  railroad  and  ware- 
house commissioners  shall  establish  a  proper  number  and 
standard  of  grades  for  the  inspection  of  grain,  and  may  alter 
or  change  the  same  from  time  to  time:  Provided,  no  modifi- 
cation or  change  of  grades  shall  be  made,  or  any  new  ones 
established,  without  public  notice  being  given  of  such  con- 
templated change,  for  at  least  twenty  days  prior  thereto,  by 
publication  in  three  daily  newspapers  printed  in  each  city 
containing  warehouses  of  class  A:    And,  provided  further, 
that  no  mixture  of  old  and  new  grades,  even  though  desig- 
nated by  the  same  name  or  distinction,  shall  be  permitted  while 
in  store. 

2797.  COMMITTEE    or    APPEALS.      §  2.   Within  twenty 
days  after  this  act  takes  effect,  the  board  of  railroad  and 
warehouse  commissioners  shall  appoint  three  discreet  and 
competent  persons  to  act  as  a  committee  of  appeals,  in  every 
city  wherein  is  located  a  warehouse  of  class  A,  who  shall 
hold  their  office  for  one  year  and  until  their  successors  are 
appointed.     And  every  year  thereafter  a  like  committee  of 
appeals  shall  be  appointed  by  said  commissioners,  who  shall 
hold  their  office  for  one  year  and  until  their  successors  are 
appointed:  Provided,  said  commissioners  shall  have  power, 
in  their  discretion,  to  remove  from  office  any  member  of  said 
committee  at  any  time,  and  fill  vacancies  thus  created  by  the 
appointment  of  other  discreet  persons. 

2798.  APPEALS — NOTICES.     §  3.  In  all  matters  involv- 
ing doubt  on  the  part  of  the  chief  inspector,  or  any  assistant 
inspector,  as  to  the  proper  inspection  of  any  lot  of  grain,  or 
in  case  any  owner,  consignee  or  shipper  of  grain,  or  any 
warehouse  manager,  shall  be  dissatisfied  with  the  decision  of 
the  chief  inspector  or  any  assistant  inspector,  an  appeal  may 
be  made  to  said  committee  of  appeal,  and  the  decision  of  a 
majority  of  said  committee  shall  be  final.      Said  board  of 


350  RAILROADS,  WAREHOUSES, 

commissioners  are  authorized  to  make  all  necessary  rules 
governing  the  manner  of  appeals  as  herein  provided.  And 
all  complaints  in  regard  to  the  inspection  of  grain,  and  all 
notices  requiring  the  services  of  the  committee  of  appeal, 
may  be  served  on  said  committee,  or  may  be  filed  with  the 
warehouse  registrar  of  said  city,  who  shall  immediately  notify 
said  committee  of  the  fact,  and  who  shall  furnish  said  com- 
mittee with  such  clerical  assistance  as  may  be  necessary  for 
the  proper  discharge  of  their  duties.  It  shall  be  the  duty  of 
said  committee,  on  receiving  such  notice,  to  immediately  act 
on  and  render  a  decision  in  each  case. 

2799.  COMMITTEE  ON  APPEALS— OATH — BOND — WHO  MAY 
SERVE  ON.     §  4.  The  said  committee  of  appeals  shall,  before 
entering  upon  the  duties  of  their  office,  take  an  oath,  as  in 
case  of  other  inspectors  of  grain,  and  shall  execute  a  bond  in 
the  penal  sum  of  five  thousand  dollars;  with  like  conditions 
as  is  provided  in  the  case  of  other  inspectors  of  grain,  which 
said  bonds  shall  be  subject  to  the  approval  of  the  board  of 
railroad  and  warehouse  commissioners.     It  is  further  pro- 
vided, that  the  salaries  of  said  committee  of  appeals  shall  be 
fixed  by  the  board  of  railroad  and  warehouse  commissioners, 
and  be  paid  from  the  inspection  fund,  or  by  the  party  taking 
the  appeal,  under  such  rules  as  the  commission  shall  pre- 
scribe; and  all  necessary  expenses  incurred  in  carrying  out 
the  provisions  of  this  act,  except  as  herein  otherwise  pro- 
vided, shall  be  paid  out  of  the  funds  collected  for  the  inspec- 
tion service  upon  the  order  of  the  commissioners:  Provided, 
that  no  person  shall  be  appointed  to  serve  on  the  committee 
of  appeals  who  is  a  purchaser  of,  or  a  receiver  of  grain,  or 
other  articles  to  be  passed  upon  by  said  committee.     [As 
amended   by  act  approved  June  26,  1885.     In  force  July  1, 
1885.    L.  1885,  p.  253.] 

2800.  "REGISTERED  FOR  COLLECTION" — INSPECTION  FEES. 
§  5.  No  grain  shall  be  delivered  from  store  from  any  ware- 
house of  class  A,  for  which  or  representing  which  warehouse 
receipts  shall  have  been  issued,  except  upon  the  return  of 
such  receipts  stamped  or  otherwise  plainly  marked  by  the 
warehouse  register  with  the  words  "registered  for  collection" 
and  the  date  thereof;  and  said  board  of  commissioners  shall 
have  power  to  fix  the  rates  of  charges  for  the  inspection  of 
grain,  both  into  and  out  of  warehouse;  which  charges  shall 
be  a  lien  upon  all  grain  so  inspected,  and  may  be  collected  of 
the  owners,  receivers  or  shippers  of  such  grain,  in  such  man- 
ner as  the  said  commissioners  may  prescribe. 

2801.  REPEAL.     §  6.  Section  13  of  the  act  to  which  this 
is  an  amendment,  is  hereby  repealed:  Provided,  the  provi- 
sions contained  in  said  section  shall  remain  in  force  until  the 


AND  EMINENT  DOMAIN.  351 

grades  for  the  inspection  of  grain  shall  have  been  established 
by  the  commissioners,  as  provided  in  section  1  of  this  act. 
[  Grades  fixed  by  commissioners,  July  1,  1873.  ] 

STATE  WE1GH-MASTERS. 

An  act  to  provide  for  the  appointment  of  state  weigh-masters.    Approved  June  23, 
1883.     In  force  July  1,  1883.    [Laws  of  1883,  p.  172;  K.  S.  1887,  p    1039;  8.  &  C.,  p.  1976.] 

2802.  WEIGH-MASTER — APPOINTMENT  OF.    §  I.  Be  it  enact- 
ed by  the  people  of  the  state  of  Illinois,  represented  in  the  gen- 
eral assembly,  That  there  shall  be  appointed  by  the  railroad 
and  warehouse  commissioners   in  all    cities  where  there  is 
state   inspection   of   grain,  a   state  weigh-master   and  such 
assistance  as  shall  be  necessary. 

2803.  DUTIES  OF.      §  2.  Said   state  weigh-master   and 
assistants  shall,  at  the  places  aforesaid  supervise  and  have 
exclusive  control  of  the  weighing  of  grain  and  other  property 
which  may  be  subject  to   inspection,  and  the  inspection  of 
scales  and  the  action  and  certificate  of  such  weigh-master  and 
assistants  in  the  discharge  of  their  aforesaid  duties  shall  be 
conclusive  upon  all  parties  in  interest. 

2804.  Fix  FEES.     §  3.  The  board  of  railroad  and  ware- 
house commissioners  shall  fix  the  fees  to   be  paid  for  the 
weighing  of  grain  or  other  property,  which  fees  shall  be  paid 
equally  by  all  parties  interested  in  the  purchase  and  sale  of 
the  property  weighed,  or  scales  inspected  and  tested. 

2809.  WEIGH-MASTER — QUALIFICATIONS — BOND — COMPEN- 
SATION.    §  4.  Said  state  weigh-master  and   assistants   shall 
not  be  a  member  of  any  board  of  trade  or  association  of  like 
character;  they  shall  give  bonds  in  the  sum  of  five  thousand 
dollars    ($5,000),  conditioned  for  the  faithful  discharge   of 
their  duties,  and  shall  receive  such  compensation  as  the  board 
of  railroad  and  warehouse  commissioners  shall  determine. 

2810.  MAY  ADOPT  RULES.     §  5.  The  railroad  and  ware- 
house commissioners  shall  adopt  such  rules  and  regulations 
for  the  weighing  of  grain  and  other  property  as  they  shall 
deem  proper. 

2811.  NEGLECT   OF   DUTY — PENALTY.     §6.  In  case  any 
person,  warehouseman  or  railroad  corporation,  or  any  of  their 
agents    or  employes,  shall  refuse  or  prevent  the    aforesaid 
state  weigh-master  or  either  of   his  assistants  from  having 
access  to  their  scales,  in  the  regular  performance  of  their 
duties  in  supervising  the  weighing  of  any  grain  or  other  prop- 
erty in  accordance  with  the  tenor  and  meaning  of  this  act 
they  shall  forfeit  the  sum  of  one  hundred  dollars  ($100)  for 
each  offense,  to  be  recovered  in  an  action  of  debt,  before  any 
justice  of  the  peace,  in  the  name  of  the  people  of  the  state  of 
Illinois;  such  penalty  or  forfeiture  to  be  paid  to  the  county 


352  KAILROADS,  WAREHOUSES, 

in  which  the  suit  is  brought,  and  shall  also  be  required  to 
pay  all  costs  of  prosecution. 

STOCKHOLDERS-IN DI VIDU  AL  LI ABILIT  Y . 

(a.)     FOB  UNPAID  SUBSC1UFTIONS. 

2812.  POWER  OF  SHAREHOLDER — to  make  stock  not  liable  to  assess- 
ment.   It  is  not  in  the  power  of  the  shareholders  by  agreement  with 
the  corporation  to  make  the  shares  of  stock  issued  to  them  non-assess- 
able, so  as  to  excuse  payment  for  such  stock  at  its  par  value  as  against 
creditors.    Union  Mut.  L.  Ins.  Co.  v.  Frear  Stone  Manf.  Co..  97  111. 
537. 

2813.  REMEDY  GIVEN— wo  application  to  stockholders  under  spe- 
cial charters.    §  25  of  the  act  of  1872,  providing  for  proceedings  in 
equity  against  the  corporation  and  stockholders,  whereby  to  make  the 
latter  pay  their  share  of  the  debts  to  the  extent  of  their  unpaid  stock, 
after  exhausting  the  assets  of  the  corporation,  applies  only  to  corpora- 
tions organized  under  that  law,  and  does  not  embrace  bodies  created 
by  special  charters.     Woodcock  v.  Turpin,  96  111.  135. 

2814.  NATURE  or  LIABILITY — several— limitation.  The  stockhold- 
er's liability  is  limited  by  the  amount  of  his  subscription  unpaid  at  the 
time  of  the  service  of  the  garnishee  process,  and  it  is  several — not  joint. 
Pease  v.  Underwriters'  Union,  1  Bradw.  287. 

2815.  SAME — when  secondary.    Under  §  25  of  the  general  incorpo- 
ration act  of  1872,  where  the  proceeding  must  be  by  suit  in  equity,  the 
stockholder's  liability  to  pay  anything  on  his  unpaid  stock  is  deferred 
until  the  assets  of  the  corporation  are  exhausted.    Robertson  v.  Noen- 
inger,  20  Bradw.  227. 

2816.  RECOVERY  LIMITED  TO  DEBT  OF  CORPORATION.    A  stock- 
holder is  not  bound  to  pay  more  of  his  subscription,  or  notes  given 
therefor  than  is  necessary  to  pay  outstanding  debts,  where  the  corpo- 
ration is  insolvent,  and  in  the  hands  ol  a  receiver.    Lamar  Ins.  Co.  v. 
Moore,  84  111.  575. 

2817.  OF  THE  DECREE— award  of  execution  before  apportionment. 
A  creditor  having  exhausted  his  remedies  against  an  insolvent  corpo- 
ration is,  in  equity,  entitled  to  be  subrogated  to  its  rights  against  its 
debtors  for  stock;  and  in  such  case,  a  decree  finding  the  sum  due  from 
a  subscriber  to  the  company  and  awarding  an  execution  therefor,  is 
not  erroneous.    It  is  not  necessary  to  apportion  the  pro  rata  share  of 
each  stockholder  necessary  to  discharge  the  debt  of  the  company  to 
the  creditor.    Hickling  v.  Wilson,  104  111.  54. 

2818.  WHO  MAY  ENFORCE  LIABILITY — receiver  of  corporation.  If 
a  stockholder  in  an  insurance  company  is  a  party  to  a  decree  appoint- 
ing a  receiver  of  the  company,  it  will  be  conclusive  on  him,  and  the 
receiver  may  maintain  a  suit  against  him  in  his  own  name.    Rowell 
v.  Chandler,  83  111.  288.    But  to  recover,  the  receiver  must  show  an 
appointment  by  a  decree  which  is  conclusive  on  the  defendant  stock- 
holder by  his  being  a  party  to  the  suit  against  the  corporation.  Chan- 
dler v.  Brown,  77  111.  333. 

2819.  SAME— creditor  with  notice  of  defense.    Where  the  party 
seeking  to  enforce  a  stockholder's  individual  liability,  was  not  a  cred- 
itor of  the  corporation  at  the  time  when  the  latter  paid  lor  his  stock 
in  land,  he  will  be  considered  as  having  given  credit  to  the  corpora- 
tion in  the  condition  it  then  was,  and  if  an  examination  of  the  books 
would  have  shown  that  the  stock  was  fully  paid,  he  cannot  recover. 
Peckv.  Coalfield  Coal  Co.,  11  Bradw.  88. 

2820.  PAYMENT  FOR  STOCK — in  property  binding.    Where  a  sub- 


AND  EMINENT  DOMAIN.  353 

scriber  has  paid  for  his  stock  in  a  corporation,  he  will  not  be  liable 
under  the  statute  for  the  debts  of  the  company;  and  it  is  immaterial 
whether  such  stock  is  paid  for  in  money  or  by  the  transfer  of  lands  in 
good  faith  to  the  corporation.  The  directors  cannot  create  a  liability 
by  declaring  that  the  stock  is  not  paid  for.  76. 

2821.  REMEDY  TO  ENFORCE — garnishment.    It  seems  that  a  stock- 
holder who  owes  the  company  for  unpaid  stock  upon  which  a  call  has 
been  made  and  notice  given,  is  liable  to  be  garnisheed  on  a  judgment 
against  the  company.    Meints  v.  E.  St.  L.  Co-operative  Rail  Mill  Co., 
89  111.  48. 

2822.  At  the  time  of  taking  out  summons  against  the  corporation, 
the  creditor  may  take  process  against  any  stockholder  whose  subscrip- 
tion is  wholly  or  in  part  unpaid;  and  by  service  on  the  latter  prevent 
further  payment  to  the  corporation  for  the  stock,  and  hold  the  same 
in  abeyance  to  abide  the  result  of  the  trial  in  the  original  case;  and 
where  a  recovery  is  had,  the  garnishee  may  be  compelled  to  respond 
to  such  judgment  creditor  instead  of  paying  his  indebtedness  to  the 
corporation.    Pease  v.  Underwriters'  Union,  1  Bradw.  287. 

2823.  If  the  cause  is  commenced  and  conducted  according  to  the 
statute,  the  whole  proceeding  will  constitute  but  one  case,  and  upon 
the  trial  of  the  issues  formed  upon  the  answers  of  the  garnishee,  the 
court  will  take  judicial  notice  of  the  judgment  against  the  corpora- 
tion.   But  where  the  garnishment  is  by  an  independent  proceeding 
there  must  be  proof  of  the  creditor's  judgment,  and  where  the  garni- 
shees  deny  being  stockholders,  the  burden  of  proof  is  on  the  plaintiff 
to  show  their  liability  as  such.    Ib. 

2824.  Under  §  8  of  the  chapter  on  corporations,  by  the  proceeding 
in  garnishment,  stockholders  may  be  compelled  to  pay  to  the  gar- 
nisheeing  creditor  any  balance  unpaid  upon  stock  owned  by  them 
respectively,  whether  such  stock  is  called  in  or  not.    Robertson  v. 
Noeninger,  20  Bradw.  227. 

2825.  BEMEDY  TO  ENFORCE  LIABILITY — garnishee  must  be  sued 
with  corporation.    To  render  a  stockholder  liable  under  the  statute, 
to  the  extent  of  his  unpaid  stock,  for  the  debts  of  the  corporation, 
proceedings  must  be  instituted  against  him  at  the  same  time  that  the 
action  is  brought  against  the  corporation,    The  remedy  given  by  the 
statute  is  exclusive.    Peek  v.  Coalfield  Coal  Co.,  3  Bradw.  619;  Robert- 
son v.  Noeninger,  20  Bradw.  227. 

2826.  It  is  not  essential  that  the  stockholder  shall  be  proceeded 
against  at  the  same  time  the  suit  is  brought  against  the  corporation, 
as  in  garnishee  proceedings  under  the  attachment  act.    The  intention 
is  to  give  the  remedy  as  ample  and  complete  as  in  cases  of  garnish- 
ment, including  process  after  judgment.    Coalfield  Co.  v.  Peck,  98 
111.  139. 

2827.  DECLARATION — in  suit  by  receiver.    In  a  suit  for  the  use  of 
the  receiver  of  an  insolvent  corporation  against  a  stockholder  to  col- 
lect his  subscription,  or  a  note  given  therefor,  no  recovery  can  be  had 
without  an  averment  of  the  debts  of  the  corporation.    The  declaration 
should  also  show  that  the  capital  stock  paid  in  has  been  exhausted. 
Lamar  Ins.  Co.  v.  Moore,  84  111.  575. 

2828.  CREDITORS'  BILL — exhausting  legal  remedy — equitable  at- 
tachment.   Under  proper  circumstances,  creditors  are  not  compelled 
to  wait  for  the  winding  up  of  insolvent  corporations,  but  may  subject 
their  unpaid  subscriptions  to  the  payment  of  their  claims.    They  must 
first  obtain  judgment  at  law  and  have  execution  returned  unsatisfied 
in  whole   or  in  part.    In  such  case,  the  creditor  is  subrogated  to  the 
rights  of  the  debtor  corporation,  and  the  proceeding  is  in  the  nature 
of  an  equitable  attachment  under  which  the  debts  due  the  corpora- 

-24 


354  BAILROADS,  WAREHOUSES, 

tion  may  be  applied  in  the  payment  of  its  own  liabilities.    Patterson 
v.  Lynde,  112  111.  196. 

2829.  COLLECTION  or  SUBSCRIPTION— compelled  by  mandamus 
or  bill  in  equity.    A  foreign  insolvent  corporation  owing  debts,  if 
still  in  existence,  may  be  compelled,  by  mandamus  or  by  bill  in  equity, 
to  collect  its  unpaid  subscriptions  wherever  the  stockholders  may  re- 
side; and  if  it  has  ceased  to  exist,  a  receiver  should  be  appointed,  and 
the  courts  of  other  states,  as  a  matter  of  comity,  would  recognize  the 
right  of  the  receiver,  the  same  as  they  would  the  corporation  itself, 
if  still  in  existence,  to  prosecute  actions  at  law  for  the  recocovery  of 
unpaid  subscriptions.    Ib. 

2830.  CREDITOR'S  BILL—; -joinder  of  plaintiff".    Two  or  more  cred- 
itors of  an  insolvent  corporation  may  unite  in  filing  a  creditor's  bill 
against  the  corporation  and  its  stockholders  to  reach  unpaid  subscrip- 
tions to  the  capital  stock,  and  such  bill  is  not  multifarious.    Hickling 
v.  Wilson,  104  111.  54. 

2831.  SAME— parties  to.       To  enforce  the  liability  of  a  stock- 
holder for  his  unpaid  stock,  it  is  indispensable  that  the  corporation, 
(or,  if  it  ceased  to  exist,  that  all  of  its  stockholders  and  creditors)  shall 
be  before  the  court,  so  as  to  be  bound  by  its  orders  and  decrees,  and 
so  that  complete  justice  may  be  meted  out  to  all,  and  all  conflicting 
rights  and  equities  finally  adjusted.    Patterson  v.  Lynde,  112  111.  196. 

2832.  KEMEDY  WHERE  CORPORATION  is  DEFUNCT  —  apportion- 
ment of  burdens.    Where  a  corporation  ceases  to  exist,  its  assets  in 
excess  of  what  is  necessary  to  pay  its  debts  belong  to  its  stockholders, 
and  the  duty  of  the  stockholder  in  such  case,  is  only  to  pay  his  pro 
rata  share  of  the  amount  needed  to  pay  the  debts.    This  duty  is  upon 
all  owing  for  stock,  and  it  is  the  duty  of  the  court  to  adjust  the  equities 
between  the  different  stockholders.    J6. 

2833.  DEFENSES  — judgment  against   corporation,  fraudulent. 
Under  the  act  of  1872  making  stockholders  liable  to  creditors  for  un- 
paid stock,  a  stockholder  when  sued  on  his  subscription,  can  not  attack 
the  judgment  against  the  corporation  on  the  ground  that  it  is  collu- 
sive and  unjust.    If  he  can  attack  the  judgment  on  that  ground,  he 
must  do  so  in  a  court  of  equity.    Coalfield  Co.  v.  Peck,  98  111.  139. 

2834.  BANKRUPTCY  or  CORPORATION — who   to  collect  unpaid 
stock.    Unpaid  subscriptions  to  the  capital  stock  of  a  corporation  are 
a  part  of  the  assets  of  the  company,  and  as  such  passes  to  its  assignee 
in  bankruptcy,  who  alone  can  sue  for  the  same.    Lane  v.  Nickerson, 
99  111.  284. 

(6.)  TO  AMOUNT  OF  STOCK,  UNTIL  WHOLE  CAPITAL  STOCK  PAID  IN,  &C. 

2835.  CONSTRUCTION— insurance  law  of  1861.    The  words  "trus- 
tees and  corporators"  in  §  16  of  the  insurance  act  of  1861,  making  them 
severally  liable  for  all  debts  and  responsibilities  of  their  companies,  to 
the  amount  by  him  or  them  subscribed,  includes  stockholders.    Shu- 
feldt  v.  Carver,  8  Bradw.  545;  Gulliver  v.  Roelle,  100  111.  141. 

2836.  The  shareholders  in  all  insurance  companies  subject  to  the 
insurance  law  of  1869,  are  liable  for  the  debts  of  their  companies  to 
the  full  amount  of  their  respective  shares  of  stock,  where  the  full 
amount  subscribed  has  not  been  paid  in.    Sutler  v.  Walker,  80  111.  345; 
Tibballs  v.  Libby,  87  111.  142. 

2837.  LIABILITY  NOT  RELEASED — by  payment  of  his  stock.    A 
stockholder  will  not  be  relieved  from  this  liability  by  the  payment  of 
his  stock  in  full.    Until  the  full  capital  stock  is  paid  in,  and  a  certifi- 
cate of  that  fact  made  and  recorded,  he  will  be  liable  to  the  extent  of 
his  stock  for  the  debts  of  the  company.    Sutler  v.  Walker,  80  111.  345; 
Tibballs  v.  Libby,  87  111.  142;  Gulliver  v.  Roelle,  100  111.  141. 


AND  EMINENT  DOMAIN.  355 

2838.  Until  the  entire  capital  stock  shall  be  paid  in  and  a  certifi- 
cate thereof  filed  with,  and  recorded  by  the  county  clerk,  the  stock- 
holders are  severally  individually  liable  to  the  creditors  to  an  amount 
equal  to  the  stook  held  by  them  respectively  for  all  debts  of  the  com- 
pany.   Baker  v.  Backus,  32  111.  79. 

2839.  LIABILITY— -for  debts  of  corporation— not  for  its  torts.   The 
mere  fact  that  a  person  is  a  stockholder  or  director,  does  not  render 
him  liable  for  the  torts  of  the  corporation,  or  its  agents  or  servants. 
Peck  v.  Cooper,  8  Bradw.  403. 

2840.  SAME— when  under  general  law.    If  an  insurance  company 
created  by  special  charter  increases  its  capital  stock  under  the  general 
law,  this  in  effect  is  an  incorporation  under  such  law,  and  by  subscrib- 
ing to  such  stock,  a  party  will  incur  the  liability  incurred  by  the  gen- 
eral law.    Tibballs  v.  Libby,  87  111.  142. 

2841.  INSURANCE  LA.W  OF  1869 — its  application  to- prior  compa- 
nies.    The  provision  of  the  insurance  law  of  1869  making  stockholders 
of  insurance  companies  liable  for  the  debts  of  their  companies,  applies 
to  companies  organized  before  its  passage,  under  general  laws.  Arenz 
v.  Weir,  89  111.  25. 

2842.  §  16  of  the  insurance  law  of  1869  makes  stockholders  and 
directors  of  insurance  companies  organized  under  that  law,  severally 
liable  for  all  debts  of  their  respective  companies,  to  the  amount  sub- 
scribed by  them  until  the  whole  amount  of  the  capital  stock  shall  be 
paid  in  and  a  certified  copy  thereof  recorded;  and  §  19  imposes  the 
same  liability  on  shareholders  in  companies  organized  under  special 
charters  and  brought  under  the  provisions  of  the  general  law.    Gulli- 
ver v.  Eoelle,  100  111.  141. 

2843.  Under  §  16  of  the  act  of  1869  as  well  as  £  2,  art.  10,  of  the  con- 
stitution of  1848,  the  word  "corporators"  is  used  in  the  sense  of  share- 
holders, and  not  in  that  of  commissioners  or  promoters  of  the  organi- 
zation of  the  companies.   •/&. 

2844.  The  individual  liability  of  a  trustee  or  corporator  of  an  insur- 
ance company  to  its  creditors  where  it  has  not  complied  with  the  law, 
does  not  depend  upon  the  fact  that  the  creditor  has  sustained  any 
actual  loss  or  injury.    The  creditor  is  only  bound  to  show  that  the 
company  owes  him,  and  that  the  whole  amount  of  the  capital  stock 
of  the  company  has  not  been  paid  in  and  a  certificate  thereof  recorded. 
Dwersy  v.  Smith,  103  111.  378. 

2845.  WHEN  LIABILITY  ATTACHES — not  until  all  the  capital  stock 
is  taken.    A  subscriber  to  the  capital  stock  of  a  proposed  corporation, 
until  the  full  amount  of  stock  fixed  by  law,  or  by  the  action  of  those 
connected  therewith  is  subscribed,  cannot  be  held  individually  liable 
for  a  debt  of  such  corporation,  unless  for  some  cause  he  has  estopped 
himself  from  alleging  that  the  whole  of  the  fixed  capital  stock  was 
never  subscribed.    Temple  v.  Lemon,  112  111.  51. 

2846.  OF  THE  NATURE  OF  LIABILITY— partnership.    As  to  claims 
against  the  corporation  the  stockholders  stand  in  the  relation  of  co- 
partners, and  one  cannot  sue  the  other  at  law.    Meisser  v.  Thompson, 
9  Bradw.  368. 

2847.  A  stockholder  occupies  the  status  of  a  partner  to  the  extent 
of  his  individual  liability,  and  as  a  partner  he  must  answer  to  the 
amount  of  his  stock  for  the  debts  of  the  corporation.    Oauch  v.  Har- 
rison, 12  Bradw.  457;  Fleischer  v.  RentcMer,  17  Bradw.  402. 

2848.  The  effect  of  a  provision  in  the  charter  of  a  bank,  making 
its  stockholders  liable  to  creditors  of  the  bank  on  its  default,  to  an 
amount  equal  to  their  stock,  is  to  withdraw  from  the  stockholders  to 
the  extent  of  their  stock,  the  protection  of  the  corporation,  and  leave 


356  BAILROADS,  WAREHOUSES, 

them  to  that  extent  liable  as  partners.    Buchanan  v.  Meisser,  105  111. 
638;  Thompson  v.  Meisser,  108  111.  359. 

2849.  Under  a  bank  charter  providing  that,  "whenever  default 
shall  be  made  in  the  payment  of  any  debt  or  liability  contracted  by 
said  corporation,  the  stockholders  shall  be  held  individually  responsi- 
ble for  an  amount  equal  to  the  amount  of  stock  held  by  them  respect- 
ively," &c.,  the  liability  of  a  stockholder  for  the  debts  of  the  bank 
is  coeval  with  that  of  the  bank,  they  both  becoming  bound  at  the 
same  time  and  by  the  same  contract.    Fleischer  v.  lientchler,  17  Brad. 
402. 

2850.  WHETHER  PRIMARY  OR  SECONDARY.    Under  the  act  of 
1857  relating  to  private  corporations,  the  liability  of  stockholders  to 
creditors  of  the  company,  is  not  dependent  upon  a  suit  against  the 
company  and  inability  to  collect,  but  such  stockholders  are  prima- 
rily liable.    Culver  v.  Third  Nat.  Bank,  64  111.  528. 

2851.  A  bank  charter  provided  that  the  stockholders  should  "be 
responsible,  in  their  individual  property,  in  an  amount  equal  to  the 
amount  of  stock  held  by  them  respectively,  to  make  good  losses  to 
depositors  or  others":  Held,  that  the  individual  liability  was  not  in  the 
nature  of  a  penalty,  and  therefore  enforceable  only  in  a  court  of  law, 
but  was  primary,  and  subject  to  the  demands  of  depositors  and  other 
creditors  equally  with  the  assets  of  the  bank.    Queenan  v.  Palmer, 
117  111.  619. 

2852.  How  MADE  LIABLE.    The  stockholders  of  a  corporation  can 
be  held  responsible  only  in  the  mode  prescribed  by  the  act  under 
which  they  became  a  corporation.    They  are  not  individually  lia- 
ble, except  under  the  circumstances  and  for  the  time  specified  in  the 
act  of  incorporation.    Baker  v.  Backus,  32  111.  79,  97,  99. 

2853.  WHEN  SECONDARILY  LIABLE—  law  of  1849.     Under   the 
act  of  1849  relating  to  railway  corporations,  if  a  claim  is  owing  by  a 
railway  company  for  services  performed  for  it,  a  stockholder  is  not 
liable  in  an  action  therefor,  until  an  execution  shall  be  returned  un- 
satisfied, in  whole  or  in  part,  against  the  corporation,  and  then  the 
amount  due  on  such  execution  is  the  amount  recoverable  with  costs, 
against  the  stockholder.    Outright  v.  Stanford,  81  111.  240. 

2854.  Stockholders  in  a  corporation  organized  under  a  law  making 
them  liable  individually  "to  the  creditors"  of  the  corporation,  will  not 
be  required  to  pay  any  portion  of  the  debts  until  the  assets  of  the  cor- 
poration are  lirst  exhausted.    Harper  v.  Union  Manf.  Co.,  100  111.  225. 

2855.  LIABILITY — restricted  to  debts  of  a  certain  class.    A  bank 
charter  provided,  "the  stockholders  of  this  corporation  shall,  as  to  all 
funds  deposited  as  savings,  and  in  trust  with  said  corporation,  while 
they  are  stockholders,  be  individually  liable  to  the  extent  of  their  stock," 
&c.:    Held,  as  restricting  the  stockholders' liability  to  the  particular 
class  of  deposits  designated— those  "as  savings  and  in  trust  with  said 
corporation,"  and  not  as  embracing  every  deposit  of  money.    The  lia- 
bility of  the  stockholder  is  the  creature  of  the  statute,  and  cannot  be 
increased  or  enlarged   beyond   the  express   terms   of   the   statute. 
Bromley  v.  Goodwin,  95  111.  118. 

2856.  LIABILITY  TO  MAKE  LOANS  GOOD — what  is  a  loss.    A  char- 
ter or  statute  making  the  stockholders  of  a  corporation  individually 
responsible  in  an  amount  equal  to  their  stock,  to  "make  good  losses  to 
depositors  or  others,"  will  be  construed  to  make  the  stockholders'  lia- 
ble to  all  creditors  who  may  suffer  from  the  default  or  failure  of  the 
corporation  to  pay  its  indebtedness.    The  total  or  partial  insolvency 
of  the  corporation  and  its  neglect  to  pay,  is  a  loss  to  the  creditors  in 
the  sense  of  that  word  as  used  in  the  statute.    Queenan  v.  Palmer, 
117  111.  619. 


AND  EMINENT  DOMAIN.  357 

2857.  The  charter  of  a  bank  contained  this  proviso:    "Provided, 
also,  that  the  stockholders  in  this  corporation  shall  be  individually 
liable,  to  the  amount  of  their  stock  for  all  the  debts  of  the  corporation ; 
and  such  liability  shall  continue  for  three  months  after  the  transfer  of 
any  stock  on  the  books  of  the  corporation":    Held,  that  the  stockhold- 
ers were  each  individually  liable  to  pay  to  the  creditors  of  the  bank, 
not  merely  the  balance  unpaid  upon  subscriptions  for  stock,  but  to  the 
extent  of  the  nominal  or  face  value  of  the  stock  held  by  them,  for  debts 
of  the  bank.    Root  v.  Hinnock,  120  111.  350. 

2858.  STOCKHOLDERS  LIABILITY — depending  on  time  he  acquired 
or  parted  witli  his  stock.    The  act  of  1851  amendatory  of  the  act  of 
1849,  providing  for  the  construction  of  plank  roads,  makes  no  distinc- 
tion between  original  subscribers  to  the  stock  and  subsequent  pur- 
chasers, in  regard  to  their  individual  liability  for  the  debts  of  their 
companies,  to  the  extent  of  the  amount  of  their  stock.    Gay  v.  Keys, 
30  111.  413. 

2859.  SAME — hypothecation — or  pledge.    Primarily  a  creditor  of  a 
national  bank  may  proceed  against  the  party  in  whom  the  legal  title 
to  the  stock  is  vested.    Where  shares  of  stock  in  a  banking  corpora- 
tion have  been  hypothecated  and  placed  in  the  hands  of  the  transferee, 
he  will  be  subjected  to  all  the  liabilities  of  ordinary  owners,  for  the  rea- 
son the  property  is  in  his  name  and  the  legal  ownership  appears  to  be 
in  him.     Wheelock  v.  East,  77  111.  296. 

2860.  Thus  where  a  party  made  a  loan  to  a  national  bank,  and 
made  his  promissory  note,  partly  as  an  act  of  accommodation  to  the 
bank,  to  be  held  among  their  other  assets,  and  fifty  shares  of  its  stock, 
equal  in  value  to  $5,000  were  issued  to  him  as  security  for  his  loans 
and  as  indemnity  against  liability  on  his  note,  it  was  held,  that  he  was 
liable  to  the  creditors  of  the  bank  as  a  stockholder,  whatever  might  be 
his  relation  to  the  corporators  of  the  bank.    Ib. 

2861.  ASSIGNEE  OF  STOCK— liability  on  informal  transfer.    If  a 
national  bank  issues  certificates  of  shares  to  a  purchaser  in  lieu  of  the 
certificates  of  the  vendor,  without  observing  its  by-laws,  so  far  as 
creditors  of  the  bank  are  concerned,  a  party  taking  and  holding  them, 
will  be  subject  to  the  liabilities  imposed  by  §  5151  of  the  national  bank- 
ing law.    Laing  v.  Hurley,  101  111.  591. 

2862.  LIABILITY  AS  BETWEEN  ASSIGNOR  AND  ASSIGNEE.     There 
can  be  but  one  amount  for  which  there  is  liability  on  account  of  the 
same  share  of  stock,  where  that  liability  equals  or  exceeds  the  amount 
of  such  share,  and  for  that  amount  both  the  assignor  and  assignee  may 
be  liable,— the  former  in  case  the  debt  was  incurred  by  the  corporation 
within  three  months  alter  the  assignment,  where  that  is  the  limit  of 
time  during  which  the  liability  of  the  assignor  shall  continue,  and  the 
assignee,  in  case  it  was  incurred  after  he  became  the  holder  of  the 
stock;  but  there  can  be  but  one  satisfaction.    If  the  assignor  is  com- 
pelled to  pay  on  account  of  debts  of  the  corporation  made  within  three 
months  after  his  transfer  of  stock,  he  may  have  his  action  against  the 
person  owning  such  stock  when  the  debt  was  created,  and  recover  the 
sum  so  paid  by  him.    Thebus  v.  Smiley,  110  111.  316, 

2863.  LIABILITY  DEPENDING  ON  TIME  OF  BECOMING  A  STOCK 
HOLDER.    Under  a  statutory  provision  making  the  stockholders  liable 
for  the  debts  of  the  corporation  to  the  extent  of  their  stock,  for  three 
months  after  the  transfer  of  their  stock  on  the  books  of  the  corpora- 
tion, it  is  not  essential  to  the  stockholder's  liability  that  he  be  such  at 
the  time  the  creditor's  cause  of  action  shall  have  accrued.    It  is  sulli- 
cient  if  he  is  a  stockholder  when  the  suit  is  brought  against  him. 
Rootv.  Sinnock,  120  111.  350. 

2864;    The  expression,  "all  stockholders,"  in  the  absence  of  any  legis- 


358  EAILEOADS,  WAREHOUSES, 

lative  indication  to  the  contrary,  must  be  regarded  as  including  not 
only  those  who  were  such  at  the  time  the  indebtedness  was  incurred, 
but  also  all  those  who  successively  stand  in  their  shoes  in  respect  to 
the  same  stock.  76. 

2865.  LIABILITY,   HOW    DISCHARGED— payment.      Stockholders 
cannot  evade  the  liability  imposed  on  them  by  law  by  confessing  judg- 
ments in  favor  of  each  other  and  paying  the  same.     The  liability  is 
created  for  the  protection  of  the  creditors  of  the  bank,  and  not  for  the 
stockholders.    Meisser  v.  Thompson,  9  Bradw.  368. 

2866.  A  stockholder  may  extinguish  his  individual  liability  by  the 
payment  of  debts  of  the  corporation,  but  he  will  be  allowed  only  the 
sum  actually  paid  for  such  claims,  and  not  their  face  value.    Gauch 
v.  Harrison,  12  Bradw.  457;  Kunkelman  v.  Rentcliler,  15  Bradw.  271. 

2867.  WHAT  WILL  DISCHARGE.    Payment  in  full  of  the  stock  sub- 
scribed by  a  stockholder  in  a  private  corporation  organized  under  the 
act  of  1857,  will  not  discharge  him  from  liability  to  creditors  of  the 
corporation.    To  make  it  have  that  effect  it  must  be  shown  that  all 
other  shareholders  have  done  the  same  thing,  and  a  certificate  of  the 
fact  has  been  filed  in  the  clerk's  office  as  required  in  the  10th  section  of 
the  act.     Kipp  v.  Bell,  86  111.  577. 

2868.  Where  a  stockholder  has  paid  the  corporation  in  full  for  his 
stock,  and  has  also  paid  a  like  sum  to  the  creditors  of  the  company, 
he  will  be  discharged  from  all  liability  for  debts  of  the  corporation 
contracted  thereafter.    Ib. 

2869.  EXTINGUISHMENT  OF  THE  LIABILITY.    Tvhe  recovery  of  a 
judgment  by  a  creditor  of  a  corporation  against  a  stockholder  for  a 
sum  equal  to  the  amount  of  his  stock,  that  being  the  limit  of  his  lia- 
bility for  the  corporation,  will  extinguish  his  liability.    So,  it  is  not 
doubted,  will  a  voluntary  payment  by  him  to  such  a  creditor  of  the 
corporation  who  has  the  right  to  sue  him  and  recover  a  judgment. 
Buchanan  v.  Meisser,  105  111.  638. 

2870.  But  a  payment  of  a  sum  equal  to  his  stock  to  the  firm  of 
which  he  is  a  member,  in  satisfaction  of  a  debt  due  from  the  corpora- 
tion to  his  firm,  will  not  release  Mm  from  his  liability  as  a  stockholder 
of  such  corporation,  or  bar  a  suit  by  another  creditor,  as  the  firm  could 
not  maintain  an  action  at  law  against  him.    Ib. 

2871.  EXTINGUISHMENT.    A  stockholder  individually  liable  for 
the  debts  of  his  corporation,  may  discharge  such  liability  by  the  pay- 
ment, in  good  faith,  of  the  amount  of  the  same  to  any  creditor  who  is 
not  also  a  stockholder.    But  he  cannot  discharge  himself  by  buying 
up  debts  of  the  corporation  equal  in  amount  to  his  liability,  at  a  dis- 
count.   In  such  case  if  he  retains  such  indebtedness  so  purchased  by 
him,  he  can  only  claim  a  discharge  for  the  actual  sum  paid  by  him  for 
the  same.    Thompson  v.  Meisser,  108  111.  359. 

2872.  STOCK    WHEN   DISCHARGED  FROM   LIABILITY.     Where  a 
judgment  is  recovered  against  a  stockholder  by  a  creditor  of  the  cor- 
poration, under  a  statute  making  the  former  liable  personally  to 
creditors  for  an  amount  equal  to  the  stock  held  by  him,  which  he 
pays,  his  stock  thereafter  will  be  free  from  liability,  and  he  may  sell 
and  transfer  the  same,  and  his  assignee  will  take  such  stock  without 
any  liability  on  his  part  in  consequence  of  his  ownership  of  the 
same.     Thebus  v.  Smiley,  110  111,  316. 

2873.  SET  OFF.    In  an  action  by  a  creditor  of  a  corporation  against 
a  stockholder  to  enforce  his  individual  liability  to  creditors  for  an 
amount  equal  to  his  stock,  the  stockholder  will  not  be  allowed  to  set 
off  against  his  liability  an  indebtedness  of  the  corporation  to  him. 
Thebus  v.  Smiley,  110  111.  316. 


AND  EMINENT  DOMAIN.  359 

2874.  In  an  action  by  a  creditor  of  a  corporation  who  is  not  also  a 
stockholder  to  enforce  the  individual  liability  of  a  stockholder,  the  lat- 
ter cannot  set  off  a  debt  due  from  the  corporation  to  himself.    Thomp- 
son v.  Meisser,  108  111.  359. 

2875.  In  an  action  by  a  creditor  of  a  corporation  against  a  stock- 
holder to  enforce  his  individual  liability,  the  latter  cannot  plead  as  a 
set  off  an  indebtedness  of  the  corporation  to  himself,  as  such  debt  is 
not  that  of  the  party  suing.    Buchanan  v.  Meisser,  105  111.  638. 

2876.  STOCKHOLDERS  INDIVIDUAL  LIABILITY — effect  of  dissolu- 
tion of  corporation.    The  dissolution  of  a  corporation  by  decree  of 
court  does  not  affect  the  liability  of  the  stockholder,  or  change  it  from 
that  imposed  by  the  statute.    Tarbett  v.  Page,  24  111.  46. 

2877.  SAME— effect  of  bankruptcy.    The  right  of  a  creditor  of  a 
corporation  to  recover  against  a  stockholder  is  not  taken  away  by  the 
bankruptcy  of  the  corporation.    That  fact  fixes  his  liability.    Tibballs 
v.  Libby,  87  111.  142. 

2878.  The  placing  the  assets  of  an  insurance  company  into  the 
hands  of  a  receiver  does  not  lessen  the  stockholder's  individual  liability 
to  its  creditors',  but  fixes  the  same.    He  is  not  under  the  control  of  the 
receiver,  but  holds  a  fund  for  the  benefit  of  creditors.    Arenz  v.  Weir, 
89  111.  25. 

2879.  KEMEDY — whether  at  law  or  in  equity.    The  charter  of  a 
bank  made  the  stockholders  individually  liable  to  depositors  for  the 
default  of  the  corporation  in  making  payment  of  any  debt:  Held,  that 
the  liability  was  purely  legal,  and  the  remedy  against  the  stockholders 
was  at  law.    The  word  "individually"  as  used  in  the  charter,  means 
separately,  and  an  action  will  lie  against  a  single  stockholder.    Meis- 
ser v.  Thompson,  9  Bradw.  368. 

2880.  As  the  statute  creates  a  legal  liability  upon  stockholders  to  a 
certain  extent  for  the  debts  incurred  by  their  company,  such  liability 
is  cognizable  in  a  court  of  law,  an  implied  promise  being  inferred  from 
a  legal  liability.    Culver  v.  Third  Nat.  Bank,  64  111.  528. 

2881.  Since  the  act  of  1872  concerning  corporations  for  pecuniary 
profit  took  effect,  a  court  of  law  has  no  jurisdiction  of  a  suit  by  a 
creditor  of  such  a  corporation  against  a  stockholder,  unless  his  debt 
accrued  before  the  act  of  1872  took  effect.    The  remedy  is  in  equity. 
Richardson  v.  Akin,  87  111.  138. 

2882.  The  ruling  of  this  court  that  an  action  at  law  by  a  single 
creditor  will  lie  against  any  stockholder  of  an  insolvent  corporation 
to  enforce  his  individual  liability,  is  not  to  be  taken  as  a  denial  of  the 
right  to  seek  relief  in  equity,  where  there  are  equitable  grounds. 
Where  the  corporation  is  insolvent  a  court  of  equity  may  take  juris- 
diction for  the  purpose  of  marshaling  the  fund  and  making  a  ratable 
distribution.    Eames  v.  Doris,  102  111.  350. 

2883.  The  liability  of  stockholders  under  §  9  of  the  act  of  1857, 
relating  to  corporations,  is  to  the  creditors  of  the  corporation  as  a 
class,  and  not  to  each  individual  creditor.    Therefore,  the  remedy  of  a 
creditor  seeking  to  enforce  the  personal  liability  created  by  that  sec- 
tion, is  in  a  court  of  equity,  and  not  at  law.    Rounds  v.  McCormick, 
114  111.  252;  Harper  v.  Union  Manf.  Co.,  100  111.  225;  Lowv.  Buchanan, 
94  111.  76;  Queenan  v.  Palmer,  117  111.  619. 

2884.  This  liability  constitutes  a  common  fund  for  the  security  of 
creditors,  and  a  court  of  equity,  aside  from  the  ground  of  discovery, 
will  have  jurisdiction  of  a  bill  by  a  creditor,  for  himself  and  others,  to 
enforce  such  penalty,  and  control  the  fund  thus  raised  for  their  bene- 
fit, and  distribute  the  same  ratably  among  them,  the  remedy  at  law  in 


360  KAILROADS,  WAREHOUSES, 

such  case  being  inadequate  without  bringing  a  multiplicity  of  suits. 
Queenan  v.  Palmer,  111  111.  619. 

2885.  REMEDY  IN  EQUITY— parties  plaintiff".    Under  sec.  9  of  the 
act  of  1857,  relating  to  manufacturing  corporations,  the  stockholders 
are  made  severally  and  individually  liable  to  the  "creditors"  of  the 
company  to  the  amount  of  stock  held  by  them,  for  all  debts,  &c.,  made 
by  such  company  prior  to  the  time  when  the  whole  capital  stock  shall 
have  been  paid  in.     This  liability  cannot  be  enforced  by  a  single 
creditor,  suing  in  his  own  behalf  alone.    It  can  be  enforced  only  upon 
a  bill  brought  by,  or  at  least,  in  behalf  of  all  the  creditors  of  the  cor- 
poration.   Harper  v.  Union  Manf.  Co.,  100  111.  225. 

2886.  SAME — party  defendant— assignee  for  creditors.     Where  the 
stockholders  are  individually  liable  secondarily,  and  the  assets  of  the 
corporation  are  in  the  hands  of  an  assignee  for  the  benefit  of  creditors, 
he  will  be  a  necessary  party,  to  a  bill  to  enforce  the  stockholder's  lia- 
bility.   76. 

2887.  SAME — sufficiency  of  bill.    A  bill  by  creditors  of  an  insolvent 
banking  company  for  and  in  behalf  of  complainants  and  all  other  cred- 
itors against  the  several  stockholders  of  the  company,  alleged  the  insol- 
vency of  the  bank,  a  deficiency  of  assets  to  pay  its  creditors,  the  per- 
sonal liability  of  the  stockholders  under  the  charter  to  the  depositors 
and  creditors,  the  existence  of  some  nine  hundred  unpaid  depositors, 
some  of  whom  were  seeking  by  separate  suits  at  law,  to  get  an  ad- 
vantage over  the  others,  and  that  such  separate  litigation  would  waste 
and  exhaust  the  proceeds  of  this  liability  of  stockholders,  the  only 
fund  to  which  depositors  could  look  for  payment,  and  asking  to  have 
an  account  taken  of  all  the  liabilities  of  the  bank  and  establish  the 
amount  for  which  the  various  stockholders  were  liable  personally,  and 
to  have  the  amounts  of  the  debts  proven  apportioned  among  the 
stockholders:  Held,  that  the  bill  clearly  showed  a  case  for  equitable 
relief  and  gave  the  court  jurisdiction  of  the  subject  matter.    Tunesma 
v.  Schuttler,  114  111.  156. 

2888.  INSURANCE  COMPANY— party  who   may  sue  for  penalty. 
Although  an  action  by  a  creditor  against  a  stockholder  to  enforce  a 
statutory  liability  is  penal  in  character,  yet  the  action  may  be  brought 
in  the  name  of  the  creditor.    The  provisions  of  §  24  of  the  insurance 
law  do  not  apply  in  such  case.    Gulliver  v.  Baird,  9  Bradw.  421;  Felix 
v.  Denton,  Id.  478. 

2889.  DECLARATION — must  show  amount  of  stock  held.    In  an  ac- 
tion under  a  law  making  the  stockholders  individually  liable  to  cred- 
itors of  the  corporation,  to  a  sum  equal  to  the  amount  of  stock  held  by 
them,  the  declaration  should  aver  the  amount  of  the  defendant's  stock. 
Sherman  v.  Smith,  20  111.  350. 

2890.  SAME — sufficiency  to  admit  proof  of  defendant  being  a  stock- 
holder.   In  an  action  against  a  stockholder  of  a  corporation  to  recover 
for  debts  of  the  company  contracted  in  the  summer  of  1867,  the  declar- 
tion  averred  that  he  became  a  stockholder  at  some  time  anterior  to 
December  1, 1868:  Held,  that  proof  was  admissible  to  show  that  the 
defendant  was  a  stockholder  when  the  debt  was  contracted.    Culver 
v.  Third  Nat.  Sank,  64  111.  528. 

2891.  SAME— owe  held  sufficient.    In  an  action  by  a  creditor  of  an 
insurance  company  against  a  stockholder  to  enforce  his  individual  lia- 
bility, the  declaration  averred  that  the  defendant  had  subscribed  for 
fifty  shares  of  the  capital  stock  of  the  company,  and  that  the  whole 
amount  of  the  capital  stock  had  not  been  paid  in,  and  that  no  certifi- 
cate of  such  payment  had  been  given  or  recorded  as  required  by  the 
statute,  but  on  the  contrary,  not  more  than  one-half  of  said  capital 


AND  EMINENT  DOMAIN.  361 

stock  had  ever  been  paid  in  to  said  company:  Held,  that  the  declara- 
tion showed  a  right  of  recovery.    Gulliver  v.  Roelle,  100  111.  141. 

2892.  EVIDENCE— proof  of  defendant  being  a  stockholder.     To 
make  one  liable  for  the  debts  of  a  corporation,  it  must  be  clearly  shown 
that  he  was  a  stockholder  and  within  the  purview  of  the  law.    The 
meaning  of  the  statute  cannot  be  so  enlarged  as  to  include  cases  not  ex- 
pressly within  its  provisions.    Being  a  director  is  not  sullicient  to 
make  him  liable.    Steele  v.  Dunne,  65  111.  298;  But  see  facts  held  suffi- 
cient to  show  a  party  to  be  a  stockholder.   Corwith  v.  Culver,  69  111.  502. 

2893.  EVIDENCE— to  show  ownership  of  stock.     The  plaintiff  is 
not  required  to  prove  the  ownership  of  stock  by  record  evidence,  but 
such  fact  may  be  shown  by  the  defendant's  admissions,  and  the  testi- 
mony of  the  officers  of  the  corporation.    Dows  v.  Naper,  91  111.  44. 

2894.  EVIDENCE— proof  of  such  a  debt  as  stockholder  is  liable  for 
In  a  suit  against  a  stockholder  of  an  insurance  company  based  upon  a 
decree  against  the  company,  no  recovery  can  be  had  without  proof  of 
the  execution  of  such  a  policy  as  is  described  in  the  declaration,  and  of 
a  loss  by  fire.    The  recital  in  the  decree  of  these  facts  is  not  evidence 
against  the  stockholder,  if  he  was  no  party  to  that  suit.    Chesnut  v. 
Pennell,  92  111.  55. 

2895.  In  such  a  suit  the  admission  of  the  loss  by  fire  of  the  property 
insured,  renders  proof  that  notice  of  that  fact  was  given  to  the  com- 
pany, wholly  unnecessary,  especially  where  j  udgment  has  been  rendered 
against  the  company  for  the  same  loss.    Black  v.  Womer,  100  111.  328. 

2896.  In  such  a  suit  it  was  admitted  that  the  plaintiff  had  recov- 
ered judgment  against  the  company  for  a  loss  on  the  policy  issued  by 
the  company,  and  that  the  property  insured  was  afterwards  destroyed 
by  tire,  the  plaintiff  still  owning  the  same:  Held,  that  the  admission 
was  sufficient  proof  of  the  execution  of  the  policy  and  of  the  loss.    Ib. 

2897.  ESTOPPEL — to  deny  liability.    Where  a  party  acted  as  presi- 
dent of  a  private  corporation,  and  held  it  out  to  the  world  as  legally 
organized  and  acting,  when  in  fact  the  whole  of  its  capital  was  never 
subscribed:  Held,  in  a  suit  by  a  creditor  to  enforce  his  individual  lia- 
bility as  a  stockholder,  that  he  was  estopped  from  showing  such  fact 
in  avoidance  of  his  obligation.    Corwith  v.  Culver,  69  111.  502, 508. 

2898.  After  acting  under  a  charter  or  deriving  a  benefit  therefrom, 
a  stockholder  will  be  estopped  from  setting  up  the  unconstitutionality 
of  the  charter,  or  an  amendment  thereto,  in  avoidance  of  his  individual 
liability  for  the  debts  of  the  corporation.    Dows  v.  Naper,  91  111.  44. 

2899.  In  a  proceeding  by  a  receiver  to  collect  a  note  given  by  a 
stockholder  for  stock  in  an  insurance  company,  the  defendant  cannot 
insist  that  an  organization  of  the  corporation  must  be  shown  in  strict 
compliance  with  the  statute.    Organization  de  facto  and  user  are  suf- 
ficient.    Washburn  v.  Roesch,  13  Bradw.  268. 

2900.  A  suit  and  judgment  against  an  imperfectly  organized  cor- 
poration, as  between  the  plaintiff  and  defendant   corporation,  will 
operate  as  an  estoppel  to  bar  the  same  plaintiff  from  recovering  from 
the  members  on  their  individual  liability  as  partners  in  the  same 
cause  of  action.    Cresswell  v.  Oberly,  17  Bradw.  281. 

2901.  ABATEMENT  OF  ACTION— death  of  stockholder.    An  action 
under  the  statute  to  enforce  a  personal  liability  against  a  stockholder 
of  an  insurance  company,  is  in  the  nature  of  a  penal  action,  and  dies 
with  him.    Diversy  v.  Smith,  9  Bradw.  437;  same  case,  103  111.  378 

2902.  EXTENT  OF  LIABILITY— decree.    Where  a  decree  on  cred- 
itor's bill  is  taken  against  a  stockholder  of  a  national  bank,  on  the 
basis  his  shares  of  stock  bear  to  the  whole  stock  of  the  bank,  there 
will  be  no  error.     Wheelock  v.  Kost,  77  111.  296. 


362  EAILEOADS,  WABEHOUSES, 

2903.  LIEN  OF  CREDITOR— equitable   attachment.    The   creditor 
first  suing  to  enforce  the  individual  liability  of  a  stockholder,  thereby 
acquires  a  preference  over  other  creditors  of  the  corporation,  which 
neither  they  nor  the  stockholder  can  defeat,  unless,  possibly,  by  bring- 
ing a  bill  for  a  general  closing  up  of  the  affairs  of  the  corporation. 
Such  action  is  in  the  nature  of  an  equitable  attachment  of  the  stock- 
holder's liability  to  the  extent  of  the  plaintiff's  claim.    After  notice  of 
such  suit,  the  stockholder  cannot  defeat  the  action  by  paying  other 
creditors  to  the  extent  of  his  liability.    Thebus  v.  Smiley,  110  111.  316. 
But  see  Chicago  v.  Hall,  103  111.  342. 

(C.)     LIABILITY  FOB  DOUBLE  THE  STOCK. 

2904.  PRIMARY  LIABILITY— not  lost  by  failure  to  sue  in  three 
months  after  transfer.    Under  the  charter  of  a  bank  which  provided, 
"each  stockholder  shall  be  liable  to  double  the  amount  of  stock  held 
or  owned  by  him,  and  for  three  months  after  giving  notice  of  trans- 
fer," &c.,  it  was  held  that  a  stockholder  assumed  a  primary  liability  to 
creditors  of  the  bank  to  an  amount  double  his  stock,  and  not  a  secon- 
dary one;  and  having  incurred  such  liability  he  was  not  released  there- 
from by  his  not  being  sued  within  three  months  after  a  transfer  of  his 
stock.    Fuller  v.  Leaden,  87  111.  310. 

2905.  CONSTRUCTION  OF  CHARTER.    The  fair  and  reasonable  con- 
struction of  such  clause  in  the  charter  is,  that  a  stockholder  is  liable 
for  debts  incurred  while  a  member,  and  also  for  such  debts  as  the  bank 
should  contract  for  and  during  the  three  months  after  giving  notice 
of  a  transfer  of  his  stock.    The  clause  does  not  relate  to  the  time  in 
which  suit  must  be  brought  to  enforce  his  liability.    Ib. 

2906.  LIABILITY  UNDER  UNCONSTITUTIONAL  CHARTER.    Where 
persons  become  stockholders  of  a  corporation,  even  under  a  charter 
repugnant  to  the  organic  law,  which  makes  them  liable  for  double  the 
amount  of  their  stock,  it  will  operate  as  an  agreement  by  each  to 
become  liable  to  creditors  of  the  corporation  according  to  the  terms  of 
the  charter,  and  they  cannot  escape  individual  liability  because  of  the 
unconstitutionally  of  the  charter.    McCarthy  v.  Lavasche,  89  111.  270. 

2907.  REMEDY — at  law — several  liability.    Under  a  charter  that 
"each  stockholder  shall  be  liable  to  double  the  amount  of  stock  held  or 
owned  by  him,"  a  creditor  of  the  corporation,  will  have  an  action  in 
his  own  name  and  at  law  against  any  stockholder,  for  the  sum  due 
him,  and  each  stockholder  will  be  severally  and  individually  liable. 
McCarthy  v.  Lavasche,  89  111.  270. 

2908.  Under  the  charter  of  a  bank  providing  that  "each  stockholder 
shall  be  liable  to  double  the  amount  of  st  ock  held  or  owned  by  him 
and  for  three  months  after  giving  notice  of  transfers,"  &c.,  a  creditor 
of  the  corporation,  to  enforce  the  individual  liability  of  a  stockholder, 
is  not  compelled  to  sue  in  the  name  of  the  corporation  for  his  use,  or 
by  bill  in  chancery,  but  may  bring  his  action  against  the  stockholder 
in  his  own  name  at  law.    Null  v.  Burtis,  90  111.  213. 

2909.  The  intention  and  effect  of  a  clause  in  a  charter  making  each 
stockholder  thereof  liable  to  double  the  amount  of  stock  held  or  owned 
by  him  and  for  three  months  after  notice  of  its  transfer,  is  to  charge 
the  stockholders  with  every  debt  made  by  the  corporation  while  they 
hold  stock,  and  also  such  indebtedness  as  may  be  contracted  during 
three  months  after  notice  that  they  have  transferred  their  stock.   The 
creditor  whose  debt  was  contracted  within  that  time  may  maintain 
suit  against  a  stockholder  after  the  expiration  of  the  three  months 
after  notice  of  a  transfer.    Ib. 

2910.  INTEREST.    Interest  is  not  recoverable  in  an  action  against 


AND  EMINENT  DOMAIN.  363 

a  stockholder  to  enforce  his  liability  to  creditors  of  the  corporation 
for  double  the  amount  of  his  stock.    Hunger  v.  Jacobson,  99  111.  349. 

2911.  DECREE — before  order  of  distribution.    Where  the  debts  of 
the  corporation  exceed  the  total  of  its  assets  and  all  stock  liabilities, 
so  that  the  whole  of  the  defendant's  liabilities  will  be  needed,  there  is 
no  reason  for  deferring  a  decree  against  them  until  the  final  decree  of 
distribution  in  the  case.    Hunger  v.  Jacobson,  99  111.  349. 

OF  CONTRIBUTION  BETWEEN  STOCKHOLDERS. 

2912.  If  one  stockholder  has  been  sued  by  a  creditor  of  the  corpo- 
ration and  paid  the  recovery  he  may  have  contribution  from  the  other 
stockholders  by  proceeding  in  equity.    Heisser  v.  Thompson,  9  Brad. 
368. 

2913.  Where  a  stockholder  in  a  corporation,  the  charter  of  which 
imposes  an  individual  liability  upon  him  for  the  debts  of  the  corpora- 
tion, has  been  sued  and  paid  the  recovery  to  a  creditor,  he  will  be  enti- 
tled to  contribution  from  all  the  other  stockholders,  and  in  enforcing 
that  right  it  may  be  that  a  court  of  equity  is  the  proper  forum,  as  in 
it  he  can  compel  each  shareholder  to  contribute  pro  rata  according  to 
the  number  of  shares  he  may  hold.     Wincock  v.  Turpin,  96  111.  135. 

2914.  A  stockholder  of  a  bank  who  pays  the  amount  of  his  indi- 
vidual liability  to  a  firm  in  which  he  is  a  partner  for  a  debt  due  such 
firm  from  the  bank,  thereby  acquires  an  equitable  right  against  his 
co-stockholders,  cognizable  and  enforceable  only  in  equity.    Buchanan 
v.  Heisser,  105  111.  638.    . 

LIMITATION  OF  ACTION. 

2915.  In  debt  by  a  creditor  of  a  corporation  against  a  stockholder 
to  enforce  the  individual  liability  of  the  latter  created  by  §  16  of  the 
insurance  law  of  1869,  the  liability  sought  to  be  enforced  is  in  the 
nature  of  a  penalty,  and  an  action  thereon  is  barred  in  two  years. 
Junker  v.  Kuhnen,  18  Bradw.  478. 

2916.  A  stockholder  in  a  corporation  formed  under  the  act  of  1849 
is  not  liable  as  such  to  creditors  of  the  corporation,  unless  suit  is 
brought  against  the  corporation  within  one  year  from  the  time  the 
debt  became  due.    Tarbell  v.  Page,  24  111.  46. 

2917.  It  is  apprehended  that  a  plea  by  a  stockholder,  who  has 
ceased  to  be  such,  that  the  cause  of  action  did  not  accrue  within  two 
years  after  he  had  ceased  to  be  a  stockholder,  that  being  the  time  pre- 
scribed in  the  act  for  the  continuance  of  his  liability,  would  be  a  good 
plea.    Baker  v.  Backus,  32  111.  79, 100. 

2918.  The  liability  of  the  trustees  and  corporators  of  insurance 
companies  arising  under  §  16  of  the  insurance  act  of  1869,  is  imposed, 
not  as  upon  a  contract,  but  by  way  of  a  satutory  penalty  only.    So,  a 
cause  of  action  arising  under  that  section  will  be  barred  within  two 
years  from  the  time  it  accrued.    Gridley  v.  Barnes,  103  111.  211. 

LIABILITY  OF  MANAGING  OFFICERS. 

FOB  EXCESS  OF  DEBT    ABOVE   CAPITAL,  STOCK. 

2919.  The  officers  and  directors  assenting  to  debts  above  capital 
stock  are  made  personally  liable  to  the  creditors  of  the  corporation  as 
a  whole,  and  not  to  any  individual  creditor,  and  this  liability  is  en- 
forceable only  in  equity.    Buchanan  v.  Bartow  Iron  Co.,  3  Bradw. 
191 ;  Buchanan  v.  Low,  3  Bradw.  202. 


364  EAILBOADS,  WAREHOUSES, 

2920.  DECLARATION.    In  an  action  to  enforce  this  statutory  lia- 
bility the  declaration  must  show  that  the  indebtedness  of  the  corpor- 
ation exceeds  the  amount  of  the  capital  stock,  and  that  the  trustees  as- 
sented thereto.    Sherman  v.  Smith,  20  111.  350,  353. 

2921.  LIABILITY  TO  CREDITORS  GENERALLY.    Under  the  provis- 
ions of  §  16,  of  chap.  32,  K.  S.  1874,  the  directors  ami  officers  of  a 
stock  corporation  who  assent  to  an  indebtedness  in  excess  of  its  capital 
stock,  are  made  personally  and  individually  liable  for  such  excess  to 
the  creditors  generally  of  such  corporation,  and  not  to  any  particular 
creditor.    Low  v.  Buchanan,  94  111.  76. 

2922.  The  object  and  purpose  of  this  section  is,  that  all  claims 
arising  under  its  provisions  shall  be  regarded  in  the  nature  of  a  trust 
fund  to  be  collected  and  divided  pro  rata  among  all  the  creditors,  and 
this  distribution  can  only  be  made  in  a  court  of  equity.    Ib. 

2923.  REMEDY — in  equity.    Where   a  stock  corporation  has  in- 
curred indebtedness  in  excess  of  its  capital  stock  to  various  parties, 
the  individual  liability  of  its  directors  and  officers  assenting  thereto 
cannot  be  enforced  by  action  at  law  at  the  suit  of  a  single  creditor, 
but  the  remedy  is  in  a  court  of  equity,  where  the  rights  and  liabilities 
of  all  may  be  determined  and  properly  adjusted.    Ib. 

2924.  If  such  an  action  can  be  maintained  at  law  by  a  single  cred- 
itor on  the  ground  there  are  no  other  creditors,  he  must  set  forth  by 
proper  averments  in  his  declaration,  and  prove  on- the  trial,  the  special 
circumstances  warranting  such  an  action.    Ib. 

2925.  In  order  to  enforce  penalties  imposed  upon  stockholders  of  a 
corporation  by  its  charter,  which  are  not  part  of  the  assets  of  the 
company,  the  suit  must  be  at  law,  in  the  name  of  the  individual  cred- 
itors, each  for  himself.    Lane  v.  Nickerson,  99  111.  284;  Wincock  v. 
Turpin,  96  111.  135. 

SALE  OF  STOCK  ON  EXECUTION. 

CHAPTER  77. — TILL  JUDGMENTS  AND  EXECUTIONS. 

2926.  SHARES  OF  STOCK  IN  CORPORATION — LIABLE  TO  SALE 
ON  EXECUTION.  §  52.  The  share  or  interest  of  a  stockholder  in 
any  corporation  may  be  taken  on  execution,  and  sold  as  here- 
inafter provided;  but  in  all  cases,  where  such  share  or  inter- 
est has  been  sold  or  pledged  in  good  faith  for  a  valuable  con- 
sideration, and  the  certificate  thereof  has  been  delivered  upon 
such  sale  or  pledge,  such  shares  or  interest  shall  not  be  liable 
to  be  taken  on  execution  against  the  vendor,  or  pledger,  except 
for  the  excess  of  the  value  thereof  over  and  above  the  sum  for 
which  the  same  may  have  been  pledged  and  the  certificate 
thereof  delivered.  [Laws  of  1871-2,  p.  505,  §  52,  as  amended 
by  the  L.  1883,  p.  110.  See  Laws  1861,  p.  132,  on  subject. 
E.  S.  1887,  p.  809,  §  52;  S.  &  C.,  p.  1410,  §  52;  Cothran,  p. 
872,  §52.] 

2927.  STATUTORY  REMEDY — must  be  strictly  pursued.  There 
being  no  authority  at  common  law  for  the  levy  of  an  execution  upon 
the  defendant's  interest  in  the  capital  stock  of  a  corporation,  and  the 
proceeding  being  wholly  statutory,  the  course  pointed  out  in  the  stat- 
ute must  be  strictly  pursued.  Goss,  &c.  v.  People,  4  Bradw.  510. 

2928.  STEPS  TO  PEEFECT  LEVY — SALE  SAME  AS  OF  CHAT- 


AND  EMINENT  DOMAIN.  365 

TELS.  §  53.  If  the  property  has  not  been  attached  in  the 
same  suit,  the  officer  shall  leave  an  attested  copy  of  the  exe- 
cution with  the  clerk,  treasurer  or  cashier  of  the  company,  if 
there  is  any  such  'officer,  otherwise  with  any  officer  or  person 
having  the  custody  [of]  the  books  and  papers  of  the  corpo- 
ration; and  the  property  shall  be  considered  as  seized  on 
execution  when  the  copy  is  BO  left,  and  shall  be  sold  in  like 
manner  as  goods  and  chatties.  [B,  S.  1887,  p.  809,  §  53;  S. 
&  C.,  p.  1410,  §  53;  Cothran,  p.  872,  §  53.] 

2029.  '  ATTESTED  COPY  OF  EXECUTION.  The  attested  copy  of  exe- 
cution mentioned  in  the  statute  need  not  be  verified  by  the  clerk  and 
attested  by  the  seal  of  the  court.  The  sheriff  holding  the  writ  may 
certify  to  the  correctness  of  the  copy.  People  v.  Gons,  &c.,  99  111.  355. 

2930.  An  attested  copy  of  the  execution,  regular  on  its  face,  must 
be  left  with  officers  of  the  company,  or  the  person  having  custody  of 
the  books;  and  the  sheriff's  returns  must  show  that  this  was  done. 
Goss,  &c.  v.  People,  4  Bradw.  510. 

2931.  WHO  MAY  ATTEST  COPY—  sheriff.    The  statute  does  not  re- 
quire the  clerk  of  the  court  to  verify  such  copy,  and  attest  it  by  the 
seal  of  the  court.    The  sheriff  holding  the  execution  may  properly 
certify  to  the  correctness  of  the  copy.    People  v.  Goss,  <&c.,*99  111.  355. 

2932.  VERIFICATION  OF  COPY.    A  copy  of  an  execution  directed 
to  the  sheriff,  delivered  by  him  to  the  clerk  of  a  corporation  having 
indorsed  upon  it  the  words:  "the  within  is  a  true  copy  of  the  execution 
and  fee  bill  in  my  hands,  under  which  /  have  seized  the  shares  of  stock 
of  the  within  named  defendant,"  &c.,  but  not  signed  by  the  sheriff,  is 
officially  verified  or  attested  within  the  requirement  of  the  stat  ute. 
The  language  identifies  the  maker  of  the  indorsement.    Ib. 

2933.  LEVY  ON  STOCK—  when  actual  and  complete.    An  actual 
levy  upon  shares  of  stock  held  by  a  debtor  in  a  corporation  is  accomp- 
lished by  the  sheriff,  where  he  has  exhibited  to  the  keeper  of  the  stock 
books  of  the  corporation  his  execution,  and  on  demand  for  the  pur- 
pose of  levy,  has  procured  and  received  from  the  corporation  "a  certifi- 
cate of  the  number  of  shares  or  amount  of  interest  held  by  the  judg- 
ment debtor,"  and  has  indorsed  upon  his  execution  a  statement  that 
the  shares  named  in  the  certificate  are  taken  in  execution,  or  levied 
upon.     When  the  sheriff  delivers  to  the  proper  officer  of  the  corpora- 
tion an  attested  copy  of  the  execution,  the  stock  of  the  debtor  shall  be 
considered  as  seized  on  execution.    This  is  only  a  constructive  levy. 
Ib.    As  to  the  usual  mode  of  levy,  see  Powell  v.  Parker,  38  Ga.  H44; 
Baily  v.  Strohecker,  Id.  259;  Mechanic's  &  T.  Bank  v.  Dakin,  33  How. 
Pr.  316:  S.  C.  50  Barb.  587;  Kultlman  v.  Orstn,  5  Duer.  242;  Clarke  v. 
Goodridye,  41  N.  Y.  210;  Drake  v.  Goodridffe,  54  Barb.  78. 


LEVY  AND  SALE  —  IN  CASE  OF  ATTACHMENT.  §  54. 
If  the  share  is  already  attached  in  the  same  suit,  the  officer 
shall  proceed  in  seizing  and  selling  it  on  the  execution,  in  the 
same  manner  as  in  selling  goods  and  chattels.  [E.  S.  1887, 
p.  810,  §  54;  S.  &  C.,  p.  1411,  §  54;  Cothran,  p.  872,  §  54.] 

2935.  OFFICEB  OF  CORPORATION  —  TO  GIVE  CERTIFICATE 
OF  DEBTOR'S  SHARES,  &c.  —  LIABILITY  FOR  REFUSAL,  &c.  §  55. 
The  officer  of  the  company  who  keeps  a  record  or  account  of 
the  shares  or  interest  of  the  stockholders  therein,  shall,  upon 
the  exhibiting  to  him  of  the  execution,  be  bound  to  give  a 


366  EAILROADS,  WAKEHOUSES, 

certificate  of  the  number  of  shares  or  amount  of  the  interest 
held  by  the  judgment  debtor.  If  he  refuses  to  do  so,  or  if  he 
willfully  gives  a  false  certificate  thereof,  he  shall  be  liable 
for  double  the  amount  of  all  damages  occasioned  by  such 
refusal  or  false  certificate,  to  be  recovered  in  any  proper 
action,  unless  the  judgment  is  satisfied  by  the  original  defend- 
ant. [E.  S.  1887,  p.  810,  §  55;  S.  &  C.,  p.  1411,  §  55;  Goth- 
ran,  p.  872,  §  55.  ] 

2936.  LIABILITY  OF  OFFICER— conditions  to  his  liability,  waiver 
of  his  rights.  The  officer  of  the  corporation  before  giving  such  certi- 
ficate has  the  right  to  have  not  only  an  exhibition  of  the  execution, 
but  also  an  attested  copy  thereof  as  a  voucher  for  his  giving  a  certifi- 
cate of  the  defendant's  stock.  But  the  right  to  such  voucher  may  be 
waived  by  the  corporation,  and  this  is  done  by  giving  the  certificate  of 
the  debtor's  shares  to  the  sheriff.  The  giving  such  certificate  is  a 
waiver  of  any  defect  in  the  attestation  of  the  copy  of  the  execution 
delivered.  People  v.  Gross  Mfy.  -Co.,  99  111.  355. 

2937.  CERTIFICATE  OF  SALE — issue  of  certificate  of  stock. 
§  56.  An  attested  copy  of  the  execution  and  of  the  return 
thereon  shall,  within  fifteen  days  after  the  sale,  be  left  with 
the  officer  of  the  company  whose  duty  it  is  to  record  transfers 
of  shares;  and  the  purchaser  shall  thereupon  be  entitled  to 
a  certificate  or  certificates  of  the  shares  bought  by  him  upon 
paying  the  fees  therefor  and  for  recording  the  transfer. 
[E.  S.  1887,  p.  810,  §  56;  S.  &  C.,  p.  1411,  §  56;  Cothran,  p. 
872,  §56.] 

2938.  DUTY  TO  TRANSFER  ON  BOOKS—  of  shares  sold  on  execution. 
The  purchaser  of  stock  in  a  corporation  at  a  sheriff's  sale,  has  a  right, 
under  the  statute,  on  leaving  with  the  officer  of  the  corporation  whose 
duty  it  is  to  record  transfers  of  shares,  within  fifteen  days  after  the 
sale,  an  attested  copy  of  the  execution  and  of  the  return  thereon,  to 
have  the  corporation  consent  to  hold. possession  of  the  stock  for  him, 
and  to  have  his  title  made  manifest  by  the  necessary  transfer  upon 
the  books,  and  by  the  issue  of  new  stock  certificates  directly  to  him, 
for  the  shares  sold  to  him.  People  v.  Gross,  &c.  Manuf.  Co.,  99  111.  355. 

2939.  EIGHTS  OF  PURCHASER — DIVIDENDS.     §  57.  If  the 
shares  or  interest  of  the  judgment  debtor  had  been  attached 
in  the  suit  in  which  the  execution  issued,  the  purchaser  shall 
be  entitled  to  all  of  the  dividends  which  have  accrued  after 
the  attachment.     [  E.  S.  1887,  p.  810,  §  57;  S.  &  C.,  p.  1411, 
§  57;  Cothran,  p.  872,  §  57. 

CONSOLIDATION. 

An  act  for  an  act  to  increase  the  powers  of  railroad  corporations.  Approved  June 
30,  1885.  In  force  July  1, 1885.  [L.  1885,  p.  229;  R.  8.  1887,  p.  1041 ;  3  S.  &  0.,  p.  447.] 

2940.  CONSOLIDATION  OF  RAILROAD  CORPORATIONS.     §  1. 
Be  it  enacted  by  the  people  of  the  state  of  Illinois,  repre- 
sented in  the  general  assembly,  That  all  railroad  companies 
now  organized,  or  hereafter  to  be  organized,  under  the  laws 
of  this  state,  which  now  are,  or  hereafter  may  be  in  posses- 


AND  EMINENT  DOMAIN.  367 

sion  of,  and  operating  in  connection  with,  or  extension  of 
their  own  railway  lines,  any  other  railroad  or  railroads,  in 
this  state  or  in  any  other  state  or  states,  or  owning  and  oper- 
ating a  railroad  which  connects  at  the  boundary  line  of  this 
state  with  a  railroad  in  another  state,  are  hereby  authorized 
and  empowered  k>  purchase  and  hold  in  fee  simple  or  other- 
wise, and  to  use  and  enjoy  the  railway  property,  corporate 
rights  and  franchises  of  the  company  or  companies  owning 
such  other  road  or  roads,  upon  such  terms  and  conditions  as 
may  be  agreed  upon  between  the  directors,  and  approved  by 
the  stockholders,  owning  not  less  than  two-thirds  in  amount  of 
the  capital  stock  of  the  respective  corporations  becoming  par- 
ties to  such  purchase  and  sale;  such  approval  may  be  given 
at  any  annual  or  special  meeting,  upon  sixty  days',  notice 
being  given  to  all  shareholders,  of  the  question  to  be  acted 
on,  by  publication  in  some  newspaper  published  in  the  county 
where  the  principal  business  office  of  the  corporation  is  situ- 
ated: Provided,  that  notice  of  any  special  meeting  called  to 
act  upon  such  question,  shall  be  given  to  each  shareholder 
whose  postoffice  address  is  known,  by  depositing  in  the  post- 
office,  at  least  thirty  days  before  the  time  appointed  for  such 
meeting,  a  notice  properly  addressed  and  stamped,  signed  by 
the  secretary  of  the  company,  stating  the  time,  place  and 
object  of  such  meeting:  And,  provided  further,  that  no  rail- 
road corporation  shall  be  permitted  to  purchase  any  railroad 
which  is  a  parallel  or  competing  line  with  any  line  owned  or 
operated  by  such  corporation. 

2941.  CONSOLIDATED  COMPANY — BODY  CORPORATE — POWER 
OF — ILLINOIS  CENTRAL.  §  2.  Any  railroad  company  now  or- 
ganized or  hereafter  to  be  organized  under  the  laws  of  this 
state,  shall  have  power  from  time  to  time  to  borrow  such 
sums  of  money  as  may  be  necessary  for  the  funding  of  its  in- 
debtedness paying  for  constructing,  completing,  improving  or 
maintaining  its  lines  of  railroad,  and  to  issue  bonds  therefor, 
and  to  mortgage  its  corporate  property,  rights,  powers,  priv- 
ileges and  franchises,  including  the  right  to  be  a  corporation, 
to  secure  the  payment  of  any  debt  contracted  for  such  pur- 
poses; and  to  increase  its  capital  stock  to  any  amount  re- 
quired for  the  purposes  aforesaid,  not  exceeding  the  cost  of 
the  roads  and  works  owned  or  constructed  and  equipped  by 
it;  such  increase  of  capital  stock  to  be  made  in  such  manner 
and  in  accordance  with  and  subject  to  such  regulations,  pref- 
erences, privileges  and  conditions  as  the  company  at  any 
general  or  special  meeting  of  its  shareholders,  held  at  the 
time  such  creation  of  new  shares  may  be  authorized,  shall 
think  fit:  Provided,  that  no  stock  or  bonds  shall  be  issued, 
except  for  money,  labor  or  property  actually  received  and  ap- 
plied to  the  purposes  for  which  such  corporation  was  created ; 


368 


nor  shall  the  capital  stock  be  increased  for  any  purpose  ex- 
cept upon  giving  sixty  days'  public  notice  in  the  manner  pro- 
vided in  the  first  section  of  this  act:  And,  provided  further, 
that  nothing  contained  in  this  act  shall  be  held  or  construed 
to  alter,  modify,  release  or  impair  the  rights  of  this  state  as 
now  reserved  to  it  in  any  railroad  charter  hertofore  granted, 
or  to  affect  in  any  way  the  rights  or  obligations  of  any  rail- 
road company  derived  from,  or  imposed  by  such  charter: 
And,  provided  further,  that  nothing  herein  contained  shall 
be  so  construed  as  to  authorize  or  permit  the  Illinois  Central 
Hailroad  company  to  sell  the  railway  constructed  under  its 
charter,  approved  February  10, 1851,  or  to  mortgage  the  same, 
except  subject  to  the  rights  of  the  state  under  its  contract 
with  said  company,  contained  in  its  said  charter,  or  to  dis- 
solve its  corporate  existence,  or  to  relieve  itself  or  its  corpor- 
ate property  from  its  obligations  to  this  state,  under  the  pro- 
visions of  said  charter;  nor  shall  anything  herein  contained 
be  so  construed,  as  to  in  any  manner,  relieve  or  discharge  any 
railroad  company,  organized  under  the  laws  of  this  state, 
from  the  duties  or  obligations  imposed  by  virtue  of  any  stat- 
ute now  in  force  or  hereafter  enacted :  And,  provided  further, 
that  nothing  in  this  act  shall  be  so  construed  as  to  authorize 
any  corporation,  other  than  those  organized  in  and  under  the 
laws  of  this  state,  to  purchase  or  otherwise  become  the  owner, 
owners,  lessee  or  lessees  of  any  railroad  within  this  state. 

ELEVATED  WAYS  AND  CONVEYORS. 

An  act  in  regard  to  elevated  ways  and  conveyors .    Approved  April  7,  1875.    In  force 
July  1,  1875.     [Laws  1875,  p.  77-    R.  S.  1887,  p.  342;  S.  &  C.,  p.  1977;  Cothran,  p.  347. 

2942.  ORGANIZATION  —  ARTICLES  OF  INCOEPOEATION.     §1. 
Be  it  enacted  by  the  people  of  the  State  of  Illinois,  repre- 
sented in  the  general  assembly:   Any   company  which  has 
been  or  shall  be  incorporated  under  the  general  laws  of  this 
state,  for  the  purpose  of  constructing,  maintaining  and  oper- 
ating any  elevated  way  or  conveyor,  shall  state  in  its  articles 
of  incorporation  the  places  from  and  to  which  it  is  intended 
to  construct  the  proposed  elevated  way  or  conveyor.     And 
any  such  company  may  organize  and  become  incorporated 
under  the  provisions  of  chapter  (32)  thirty-two  of  the  re- 
vised statutes  of  1874,  concerning  corporations  for  pecuniary 
profit,  and  shall  be  subject  to  the  provisions  of  the  laws  of 
this  state  applicable  to  such  corporations. 

2943.  EIGHT  OF  WAY — HOW  OBTAINED.     §  2..  If  any  such 
corporation  shall  be  unable  to  agree  with  the  owner  for  the 
purchase  of  any  real  estate  required  for  the  purposes  of  its 
incorporation  or  the  transaction  of  its  business,  or  for  its 
depots,  station  buildings,  engine  houses,  or  for  right  of  way, 
or  any  other  lawful  purpose  connected  with  or  necessary  to 


AND  EMINENT  DOMAIN.  369 

the  construction,  maintenance  and  operation  of  said  elevated 
way  or  conveyor,  such  corporation  may  acquire  such  title  in 
the  manner  that  may  be  now  or  hereafter  provided  for  by 
any  law  of  eminent  domain. 

2944.  MAY  TAKE  MATERIAL  —  COMPENSATION.    §3.  Any 
such  corporation  may,  by  their  agents  and  employes,  enter 
upon  and  take  from  any  land  adjacent  to  its  way,  or  road,  or 
conveyor,  earth,  gravel,  stone  or  other  material,  except  fuel 
and  wood,  necessary  for  the  construction  of  such  elevated 
way,  paying,  if  the  owner  of  such  land  and  the  said  corpora- 
tion can  agree  thereto,  the  value  of  such  material  taken,  and 
the  amount  of  damage  occasioned  to  any  such  land  or  its 
appurtenances;  and  if  such  owner  and  corporation  cannot 
agree,  then  the  value  of  such  material  and  the  damage  occa- 
sioned to  such  real  estate  shall  be  ascertained,  determined 
and  paid  in  the  manner  that  may  now  or  hereafter  be  provi- 
ded by  any  law  of  eminent  domain;  but  the  value  of  such 
material,  and  the  damages  to  such  real  estate,  shall  be  ascer- 
tained, determined  and  paid  for  before  such  corporation  can 
enter  upon  and  take  the  same. 

2945.  CAPITAL  STOCK — INCREASE  OF.    §  4.  In  case  the 
capital  stock  of  any.  such  corporation  shall  be  found  insuffi- 
cient for  constructing  and  operating  its  elevated  way  or  con- 
veyor, such  corporation  may,  with  the  concurrence  of  two- 
thirds,  in  value,  of   all  its   stock,  increase  its  capital  stock, 
from  time  to  time,  to  any  amount  required  for  the  purpose 
aforesaid. 

2946.  POWERS  or — RESTRICTION.     §5.  Every  corporation 
formed  under  this  act  shall,  in  addition  to  the  powers  herein- 
before conferred,  have  power — 

First — To  cause  such  examination  and  survey  for  its  pro- 
posed elevated  way  to  be  made  as  may  be  necessary  to  the 
selection  of  the  most  advantageous  route;  and  for  this  pur- 
pose, by  its  officers,  agents  or  servants,  may  enter  upon  the 
lands  or  waters  of  any  person  or  corporation,  but  subject  to 
responsibility  for  all  damages  which  shall  be  occasioned 
thereby. 

Second — To  lay  out  a  strip  of  land,  not  exceeding  sixty-six 
feet  in  width,  on  which  to  construct,  maintain  and  operate 
said  elevated  way  or  conveyor;  and  for  the  purpose  of  cut- 
tings and  embankments,  to  take  as  much  more  land  as  may 
be  necessary  for  the  proper  construction  and  security  of  the 
elevated  way;  to  cut  down  any  standing  trees  that  may  be  in 
danger  of  falling  upon  and  injuring  such  way,  making  com- 
pensation therefor  in  manner  provided  by  law. 

Third — To  construct  its  way  across,  along  or  upon  any 
stream  of  water,  water-course,  street,  highway,  plank-road, 

—25 


370  BAILROADS,  WAREHOUSES, 

turnpike,  canal  or  railroad,  which  the  route  of  such  elevated 
way  shall  intersect  or  touch;  but  such  corporation  shall  re- 
store the  stream,  water-course,  street,  highway,  plank-road, 
turnpike  and  railroad  thus  intersected  or  touched,  to  its  for- 
mer state,  or  to  such  state  as  not  unnecessarily  to  have  im- 
paired its  usefulness,  and  keep  such  crossing  in  repair:  Pro- 
vided, that  in  no  case  shall  any  company  construct  its  way 
without  first  constructing  the  necessary  culverts  and  sluices, 
as  the  natural  lay  of  the  land  requires  for  the  necessary 
drainage  thereof. 

Nothing  in  this  act  contained  shall  be  construed  to  author- 
ize the  erection  of  any  bridge,  or  any  other  obstruction,  across 
or  over  any  stream  navigated  by  steamboats,  at  the  place 
where  any  bridge  or  other  obstruction  may  be  proposed  to  be 
placed,  so  as  to  prevent  the  navigation  of  such  stream;  nor 
to  authorize  the  construction  of  any  elevated  way  or  conveyor 
upon  or  across  any  street  in  any  city,  or  incorporated  town, 
or  village,  without  the  assent  of  the  corporation  of  such  city, 
town  or  village:  Provided,  that  in  case  of  the  construction 
of  said  elevated  way  or  conveyor  along  highways,  plank- 
roads,  turnpikes,  canals  or  railroads,  such  company  shall 
either  first  obtain  the  consent  of  the  lawful  authorities  hav- 
ing control  or  jurisdiction  of  the  same,  or  condemn  the  same 
under  the  provisions  of  any  eminent  domain  law,  now  or 
hereafter  in  force  in  the  state. 

USE  OF  STREETS,  ETC.,  BY  ELEVATED  RAILROADS. 

An  act  in  regard  to  the  nee  of  streets  and  alleys  in  incorporated  cities  and  villages 
by  elevated  railroads  and  elevated  ways  and  conveyors.  Approved  June  18,  1883.  In 
force  July  1,  1883.  [L  1883,  p.  126;  R.  S.  1887,  p.  343;  8.  &.  C.,  p.  1979;  Cothran,  p.  287J.] 

2947.  PETITION  OF  LAND-OWNERS.     §  1.  Be  it  enacted  by 
the  people  of  the  state  of  Illinois,  represented  in  the  general 
assembly,  That  no  person  or  persons,  corporation  or  corpo- 
rations, shall  construct  or  maintain  any  elevated  railroad  or 
any  elevated  way  or  conveyor  to  be  operated  by  steam  power, 
or  animal  power  or  any  other  motive  power,  along  any  street 
or  alley  in  any  incorporated  city  or  village,  except  by  the  per- 
mission of  the  city  council  or  board  of  trustees  of  such  city 
or  village,  granted  upon  a  petition  of  the  owners  of  the  lands 
representing  more  than  one-half  of  the  frontage  of  the  street 
or  alley,  or  of  so  much  thereof  as  is  sought  to  be  used  for 
such  elevated  railroad  or  elevated  way  or  conveyor;  and  the 
city  council,  or  board  of  trustees,  shall  have  no  power  to 
grant  permission  to  use  any  street  or  alley,  or  part  thereof, 
for  any  of  the  purposes  aforesaid,  except  upon  such  petition 
of  land-owners  as  is  herein  provided  for. 

2948.  WHEN  STREET  MORE  THAN  ONE  MILE.     §  2.  When 
the  street  or  alley,  or  part  thereof,  sought  to  be  used  for  any 


AND  EMINENT  DOMAIN.  371 

of  the  purposes  aforesaid,  shall  be  more  than  one  mile  in 
extent,  no  petition  of  land-owners  shall  be  valid  for  the  pur- 
poses of  this  act,  unless  the  same  shall  be  signed  by  the  own- 
ers of  the  land  representing  more  than  one-half  of  the  front- 
age of  each  mile  and  fractional  part  of  a  mile,  of  such  street 
or  alley  or  of  the  part  thereof  sought  to  be  used  for  any  of 
the  purposes  aforesaid. 

2949.  KEPEAL.     §  3.  All  acts  and  parts  of  acts  incon- 
sistent herewith  are  hereby  repealed. 

CHAPTER  31— CORONERS. 

2950.  LIABILITY  OF  RAILWAY,  ETC. — FOE  EXPENSES  OF  IN- 
QUEST AND  BURIAL.     §  22.  When  any  railroad  company,  stage 
or  any  steamboat,  propeller  or  other  vessel  engaged  in  whole 
or  in  part  in  carrying  passengers  for  hire,  brings  the  dead  body 
of  any  person  into  this  state,  or  any  person  dies  upon  any 
railroad  car  or  any  such  stage,  steamboat,  propeller  or  other 
vessel  in  this  state,  or  any  person  is  killed  by  cars  or  ma- 
chinery of  any  railroad  company,  or  by  accident  thereto,  or 
by  accident  to  or  upon  any  such  stage,  steamboat,  propeller, 
or  other  vessel,  or  by  accident  to,  in  or  about  any  mine,  mill 
or  manufactory,  the  company  or  person  owning  or  operating 
such  cars,  machinery,  stage,  steamboat,  propeller  or  other 
vessel,  mine,  mill  or  manufactory  shall  be  liable  to  pay  the  ex- 
penses of  the  coroner's  inquest  upon  and  burial  of  the  de- 
ceased, and  the  same  may  be  recovered  in  the  name  of  the 
county  in  any  court  of  competent  jurisdiction.     [Laws   of 
1855,  p.  170,  §§  1,  2,  3;  K  S.  1887,  p.  329,  §  22;  S.  &  C.  p.  606, 
§  25;  Cothran,  p.  323,  §  22.     Held  unconstitutional;  see  O. 
&  M.  Ey.  v.  Luckey,  78  111.  55.] 

WAREHOUSES  AND  WAREHOUSE  RECEIPTS. 

2951.  When  the  amount  of  grain  of  the  different  owners  in  a  ware- 
house falls  short,  each  owner  is  entitled  to  his  proportion  of  what  is 
left.  Sexton  v.  Graham.  53  Iowa,  200. 

,  2952.  INTERMIXTURE.  If  there  is  a  confusion  of  goods  by  reason 
of  intermixture  so  that  each  party  cannot  distinguish  his  own,  each 
will  have  a  proportionate  property  in  the  whole.  Low  v.  Martin,  18 
111.  286. 

2953.  A  party  who  consents  that  grain  left  with  a  warehouseman 
may  be  put  in  bulk  with  other  grain,  with  the  understanding  that  he 
shall  receive  a  like  quantity  and  quality,  cannot  maintain  replevin  for 
the  grain.If  the  intermixture  was  without  consent,  or  was  the  wrong- 
ful act  of  the  warehouseman,  it  would  be  otherwise.    Ib. 

2954.  LIEN.    Warehousemen  have  a  lien  on  grain  stored  with 
them  for  proper  charges  and  may  retain  possession  to  secure  their 
payment.    Low  v.  Martin,  18  111.  280. 

2955.  The  fraudulent  issue  of  warehouse  receipts  for  grain  not 
in  store,  does  not  deprive  the  warehouseman  of  his  lien  for  that  which 
he  has  actually  stored.    Ib. 


372  •   EAILEOADS,  WAREHOUSES, 

2956.  LIABILITY  IN  CASE — on  fraudulent  receipts.    An  action  on 
the  case  may  be  maintained  upon  fraudulent  warehouse  receipts  pur- 
porting to  have  been  given  for  produce  in  store,  by  a  party  who  has 
advanced  money  upon  the  faith  of  them,  and  this  whether  the  party 
has  been  deprived  of  the  produce  or  his  money.    Low  v.  Martin,  18 
111.  290. 

2957.  SALE  or  GOODS— right  to  surplus  above  charges.    Where 
goods  erroneously  shipped  to  a  fictitious  person  are  sold  by  the  ware- 
houseman, the  surplus  after  paying  charges  belong  to  the  shipper. 
Boilvin  v.  Moore,  22  111.  318. 

2958.  PURCHASER  OF  WAREHOUSE  RECEIPT—  when  takes  subject 
to  charges.    Where  a  party  purchases  a  warehouse  receipt  for  grain, 
with  notice  that  it  is  subject  to  charges  for  storage,  he  will  be  liable, 
for  such  charges,  and  the  warehouseman  will  have  a  lien  therefor 
Cole  v.  Tyng,  24  111.  99. 

2959.  CHARGES  NOT  LOST  BY  DELIVERY  OF  GRAIN.    If  a  ware- 
houseman permits  grain  to  be  removed  before  his  charges  are  paid,  he 
will  not  thereby  lose  his  recourse  against  the  holder  of  the  receipt.  Ib. 

2960.  LIEN — lost  by  delivery.    If  a  warehouseman  or  consignee 
delivers  goods  upon  the  receipt  of  the  promissory  note  of  the  owner 
for  charges,  he  will  lose  his  lien,  which  will  not  revive  should  the 
goods  accidentally  be  returned  to  his  possession.    Hale  v.  Barrett.  26 
111.  195. 

2961.  LIEN— /or  charges  not  on  another's  goods.    If  goods  belong- 
ing to  different  owners  are  shipped  by  one  bill  of  lading,  the  consignee 
cannot  hold  the  goods  of  one  for  the  charges  upon  the  goods  of  the 
other.    Each  owner  is  entitled  to  his  goods  on  the  payment  of  the 
appropriate  charges  thereon.    Ib. 

2962.  STORAGE  OF  GRAIN— decree  of  care  required.    A  warehouse- 
man who  receives  the  grain  of  another  for  storage,  is  only  bound  to 
ordinary  care  for  its  preservation.    But  where  he  purchases  grain  for 
another  and  has  it  in  store,  he  takes  the  risk  of  any  loss  that  may 
occur,  until  such  delivery  as  will  pass  the  title  to  the  party  for  whom 
the  grain  was  bought.    Myers  v.  Walker,  31  111.  353. 

2963.  SAME — compensation  for.    A  warehouse  receipt  was  as  fol- 
lows:   "Received  in  store  for  W.  &  K.,  and  subject  to  their  order,  and 
free  of  all  charges  on  board  their  boats,  or  any  boats  they  may  send 
for  the  same,  thirty  thousand  bushels  corn:"    Held,  that  the  ware- 
houseman was  bound  to  store  the  corn  free  of  charge,  only  for  a  rea- 
sonable time;  and  if  boats  were  not  sent  for  the  corn  within  such 
time,  he  would  be  entitled  to  compensation  for  storage  and  for  any 
extra  labor  in  delivery  occasioned  by  the  delay.    But  the  right  to 
charge  for  storage  it  seems  would  accrue  only  after  notice  to  the  owner 
to  remove  the  grain.    Myers  v.  Walker,  31  111.  353.    Same  case,  24  111. 
133,  137. 

2964.  WAREHOUSE  RECEIPTS — rights  of  holder.    The  holder  of  a 
warehouse  receipt  for  grain  has  only  the  personal  obligation  of  the 
warehouseman  for  the  proper  storage  and  delivery  of  his  grain  accord- 
ing to  the  terms  of  the  receipt,  or  on  default,  to  recover  the  damages 
growing  out  of  a  breach  of  the  contract.    Dole  v.  Olmstead,  36  111.  150. 

2965.  WAREHOUSE  RECEIPT— gives  no  lien  in  favor  of  holder. 
The  giving  of  a  warehouse  receipt  creates  no  specific  or  general  lien 
on  the  property  of  the  warehouseman,  although  that  should  consist  of 
grain  put  in  the  common  bulk  with  that  of  the  holder  of  the  receipt. 
Dole  v.  Olmstead,  36  111.  150. 

2966.  CONFUSION  OF  PROPERTY — rights  of  the  several  owners. 
Where  the  grain  of  different  owners  has  been  intermingled  in  one 


AND  EMINENT  DOMAIN.  373 

common  mass  according  to  the  usage  of  warehousemen,  and  without 
objection  by  the  owners,  it  will  become  common  property,  owned  by  the 
several  parties  in  the  proportion  in  which  each  had  contributed  to 
the  common  stock.  The  several  owners  must  sustain  any  loss  pro 
rata  which  may  occur  by  diminution,  decay  or  otherwise.  Dole  v. 
Olmstead,  36  111.  150. 

2967.  SAME— remedy  in  chancery.    Where  the  warehouseman  as- 
signs all  the  grain  in  store,  including  grain  of  his  own,  to  a  creditor,  to 
secure  a  debt,  to  be  held  subject  to  the  rights  of  others,  the  creditor 
will  become  a  trustee  for  the  benefit  of  all  parties  in  interest,  and 
where  there  is  a  deficiency  of  grain  to  satisfy  all  and  the  grain  is  inter- 
mixed, a  court  of  equity  will  have  jurisdiction.    Dole  v.  Olmstead,  36 
111.  150. 

2968.  CAKE  REQUIRED  OF.    A  warehouseman  must  exercise  rea- 
sonable care,  but  he  is  not  an  insurer  against  all  losses  except  those 
arising  from  the  act  of  God  and  the  public  enemy.    He  is  only  liable 
for  losses  which  might  have  been  guarded  against  by  the  exercise  on 
his  part  of  ordinary  care  and  diligence.    St.  L.,  A.  &  T.  H.  R.  R.  v. 
Montgomery,  39  111.  335. 

2969.  WAREHOUSE  RECEIPTS— stand  in  place  of  property — nego- 
tiability.   Keceipts  given  by  a  warehouseman  for  chattels  stored  with 
him,  are  not  in  a  technical  sense,  negotiable  instruments,  but  they 
merely  stand  in  the  place  of  the  property  itself,  and  a  delivery  of  the 
receipts  has  the  same  effect  in  transferring  the  title  as  the  delivery  of 
the  property,  neither  more  nor  less.    Burton  v.  Curyea,  40  111.  320. 

2970.  SAME — transfer  by  one  having  no   title.    A  purchaser  of 
pork  in  warehouse,  who  takes  warehouse  receipts  therefor,  and  then, 
to  enable  his  vendor  to  withdraw  the  pork  from  the  warehouse  for  the 
purpose  of  overhauling  and  re-packing  it,  delivers  the  receipts  back  to 
the  vendor,  who  transfers  them  to  a  bonafide  purchaser,  still  remains 
the  owner  of  the  pork  and  may  maintain  replevin  for  it  against  the 
warehouseman  in  whose  possession  it  still  remains.   Burton  v.  Curyea, 
40  111. -320. 

2971.  SAME— negligence  of  rightful  owner.    If  the  purchaser  of 
warehouse  receipts  indorsed  in  blank  should  place  them  in  the  hands 
of  his  vendor  .for  improper  purposes,  or  be  fairly  chargeable  with  any 
negligence  whereby  the  person  having  the  receipts,  was  enabled  to 
impose  on  an  innocent  purchaser,  it  may  be  a  different  rule  might 
prevail.    Ib. 

2972.  WAREHOUSE  RECEIPTS— negligence  in  respect  to — notice  of 
purchase.    The  failure  of  a  purchaser  of  pork  in  warehouse  by  the 
transfer  in  blank  of  the  receipts  therefor,  to  take  new  receipts  in  his 
own  name,  and  putting  them  in  the  hands  of  his  vendor  instead  of  the 
original  receipts,  and  his  neglect  to  notify  the  warehouseman  of  his 
purchase,  is  not  negligence  on  the  part  of  the  purchaser.    Burton  v. 
Curyea,  40  111.  320.  , 

2978.  WAREHOUSE  RECEIPTS— a  good  tender  of  grain.  An  actual 
tender  of  warehouse  receipts  for  grain  stored  by  the  vendor  of  grain 
in  Chicago,  is  a  good  tender  of  the  grain,  unless  the  purchaser  should 
insist  on  seeing  it.  McPherson  v.  Gale,  40  111.  368. 

2974.  LIABILITY — conversion  of  grain.    Where  the  assignees  of  a 
warehouseman  convert  grain  in  store  with  them  which  they  received 
from  their  assignor,  and  appropriate  the  money  to  their  own  use,  they 
will  at  least  be  liable  to  account  to  the  owners  for  the  amount  received, 
with  interest  from  the  date  of  sale.    Dole  v.  Olmstead,  41  111.  344. 

2975.  ASSIGNEE  OF  WAREHOUSEMAN — take  no  interest  in  grain  of 
others  in  store.    Where  a  commission  merchant  having  large  amounts 
of  grain  on  storage  for  others,  makes  a  general  assignment  for  the 


374  EAILROADS,  WAREHOUSES, 

benefit  of  creditors,  his  assignees  will  take  only  the  interest  of  the 
assignor,  and  cannot  claim  the  grain  of  others  so  stored.    Ib. 

2976.  INTERMIXTURE — average  of  loss.    Where  the  grain  of  vari- 
ous parties  in  a  warehouse  is  stored  in  a  common  mass  by  the  consent 
of  the  owners,  and  the  warehouseman  makes  an  assignment  for  credit- 
ors, and  there  proves  to  be  a  loss  in  the  quantity  of  the  grain,  the  court 
should  average  the  loss  among  all  the  owners;  and  if  the  grain  has 
been  sold  by  the  assignees,  each  owner  should  be  compensated  in 
money  in  proportion  to  the  grain  he  placed  in  store.    Ib. 

2977.  DEGREE  OF  CARE.    Where  the  carrier  assumes  the  duties  of 
warehouseman,  he  will  be  bound  to  ordinary  care  and  diligence  in  the 
preservation  of  the  property.    The  building  in  which  the  goods  are 
stored  must  be  a  safe  one,  though  it  need  not  be  fire  proof.    It  should 
be  under  the  charge  of  careful  and  competent  servants,  and  in  case  of 
threatened  danger  from  tire,  ordinary  diligence  must  be  used  to  remove 
the  property.    C.  &A.  R.  R.  v.  Scott,  42  111.  132. 

2978.  WAREHOUSE  RECEIPT  —  tender  of  grain  sold  by.    In  an 
action  by  the  vendor  of  grain  to  recover  the  price  agreed  to  be  paid, 
proof  of  the  attendance  of  the  plaintiff  at  the  time  and  place  agreed 
upon  for  its  delivery,  but  in  the  absence  of  the  purchaser,  for  the 
purpose  of  tendering  warehouse  receipts,  is  not  a  sufficient  tender, 
without  the  further  proof  that  such  receipts  were  genuine  and  that 
the  grain  was  not  subject  to  charges.    McPherson  v.  Hall,  44  111.  264. 

2979.  But  a  tender  of  the  receipts  to  the  defendant  in  person 
would  have  been  good,  if  without  objection,  as  the  failure  to  object 
would  impliedly  admit  that  the  receipts  honestly  represented  the  prop- 
erty.   Ib. 

2980.  CONTRACT  FOR  STORAGE — construction.  The  plaintiff  stored 
corn  in  the  defendant's  warehouse,  taking  from  them  the  following 
agreement:  "Feb.  9, 1860.  We  hereby  agree  to  store  ear  eorn  for  H.  H. 
until  the  first  of  June  next,  for  three  cents  per  bushel;  two  cents  for 
shelling,  and  receiving  75  pounds  and  deliver  58  pounds.  If  sold  before 
the  first  of  June,  we  are  not  to  charge  for  shelling;  if  not  sold  by  the 
first  of  June  we  are  to  charge  one-half  per  cent  per  month  till  it  is  sold. 
The  corn  to  be  good  and  merchantable.    C.  &  V.":    Held,  that  the 
contract  contemplated  a  storage  beyond  June,  1860.    Cushman  v. 
Hayes,  46  111.  145. 

2981.  Such  a  contract  would  not  continue  for  an  indefinite  time 
wholly  on  the  will  of  the  owner  of  the  corn.    Although  the  contract 
provides  the  corn  may  remain  in  store  by  paying  one-half  per  cent  per 
month,  until  the  corn  is  sold,  there  is  nothing  in  the  terms  to  prevent 
a  termination  of  the  contract  by  the  defendants,  on  notice,  where  a 
necessity  for  so  doing  arises.    Ib. 

2982.  WAREHOUSE  RECEIPT — negotiable.    Under  the  act  incorpo- 
rating the  Chicago  Dock  company,  a  warehouse  receipt  issued  by  that 
company  is  made  negotiable,  and  as  such,  absolutely  vests  in  the 
holder  the  title  to  the  property  specified  in  it.    Ch.  Dock  Co.  v.  Foster, 
48  111.  507. 

2983.  WAREHOUSE  RECEIPTS— parol  evidence  to  vary.    A  ware- 
house receipt  given  for  grain  received  in  store,  is  the  contract  of  the 
parties,  and  parol  evidence  is  not  admissible  to  vary  its  terms.    Leon- 
ard v.  Dunton,  51  111.  482. 

2984.  REMEDY— against  warehouseman  refusing  to  deliver.  Where 
a  warehouseman  receives  grain  in  store,  and  gives  his  receipt  therefor, 
providing  for  a  delivery  of  the  grain  on  the  order  of  the  owner,  while 
an  action  of  trover  might  lie  against  the  warehouseman  on  his  refusal 
to  deliver  the  grain  on  demand,  yet  assumpsit  will  also  lie  for  the 
breach  of  the  contract.    Leonard  v.  Dunton,  51  111.  482. 


AND  EMINENT  DOMAIN.  375 

2985.  MEASURE  OF  DAMAGES.    In  assumpsit  against  a  warehouse- 
man for  a  refusal  to  deliver  grain  placed  in  store,  on  demand,  accord- 
ing to  his  contract,  the  measure  of  damages  is  the  value  of  the  grain 
at  the  time  it  should  have  been  delivered.    Leonard  v.  Dunton,  51 
111.  482. 

2986.  ACTION  FOR  NON-DELIVERY — non-payment  of  storage  no 
defense.     Where  grain  is  stored  in  a  warehouse  to  be  kept  a  short 
time  without  charge,  and  to  be  delivered  to  the  owner  when  demanded, 
the  neglect  of  the  owner  to  pay  storage  after  such  time,  or  to  offer  to 
do  so,  will  not  defeat  his  action  against  the  warehouseman  for  the 
breach  of  the  contract  to  deliver  the  grain  on  demand.    The  most  the 
warehouseman  could  claim  would  be  a  reasonable  deduction  for  stor- 
age after  having  given  notice  that  storage  would  be  charged.    Leon- 
ard v.  Dunton,  51  111.  482. 

2987.  PRIVATE  WAREHOUSEMAN — intermixture.     In   case  of  a 
storage  of  grain  by  a  private  warehouseman,  in  the  absence  of  any 
agreement  on  the  subject,  the  inference  would  be  that  he  was  to  keep 
it  in  the  condition  in  which  he  received  it,  and  if  mixed  with  his  own 
grain  by  consent  of  the  owner,  that  it  shall  remain  with  the  ware 
houseman,  until  demanded.    Ives  v.  Hartley,  51  111.  520. 

2988.  REMEDY.    Where  a  person  puts  grain  in  a  warehouse  for 
the  purpose  of  storage,  and  the  warehouseman  converts  the  same  to 
his  own  use,  the  owner  may  waive  the  tort  and  recover  from  the  ware- 
houseman in  assumpsit  for  money  had  and  received,  for  the  value  of 
the  grain.    Ives  v.  Hartley,  51  111.  520. 

2989.  RECEIPT — whether  a  deposit  or  a  sale.    The  owner  of  wheat 
delivered  the  same  to  a  miller,  taking  a  receipt  therefor  as  follows: 
"Received  of  A.  B.  to  be  stored  150  bushels  wheat,  to  take  market  price 
when  he  sees  lit  to  sell:"    Held,  that  the  form  of  the  receipt  implied  a 
sale  of  the  wheat  and  not  merely  a  deposit  for  storage.    Ives  v.  Hart- 
ley, 51  111.  520. 

2990.  WHETHER  A  SALE  OR  BAILMENT.    Where  grain  was  depos- 
ited in  a  warehouse  on  the  understanding  between  the  parties,  not 
that  the  identical  grain,  or  grain  of  like  quality  was  to  be  returned, 
but  the  money  value  thereof  to  be  ascertained  by  the  market  price  on 
the  day  the  depositor  should  choose  to  fix,  the  transaction  was  held  to 
be  a  sale  and  not  a  bailment.    Lonergan  v.  Stewart,  55  111.  44. 

2991.  LIEN— how  lost.    After  the  great  fire  in  Chicago  in  1871,  the 
board  of  trade,  acting  in  behalf  of  unknown  owners  and  parties  inter- 
ested, and  with  the  assent  of  the  several  warehousemen,  took  posses- 
sion of  the  grain  unconsumed  and  sold  the  same  for  the  benefit  of  the 
owners.    Previous  to  the  sale,  the  warehousemen  agreed  in  writing 
with  the  board  of  trade,  that  the  latter  might  sell,  the  former  to  re- 
ceive two  cents  per  bushel  as  accrued  storage  thereon.    After  the  sale 
they  claimed  a  lien  on  the  fund  for  charges  over  and  above  the  sum 
stipulated:  Held,  that  they  had  lost  their  lien  for  storage,  except  for 
two  cents  a  bushel;  and  that  the  expense  incurred  in  preserving  the 
grain  was  a  proper  charge  to  be  deducted  from  the  fund.    Board  of 
Trade  v.  Buckingham,  65  111.  72. 

2992.  WAREHOUSE  RECEIPT — transfer  of  title  by.    The  transfer 
of  a  warehouse  receipt,  or  bill  of  lading  accompanied  by  a  sale  or 
pledge  of  the  property  specified  in  the  receipt  or  bill,  will  have  the 
same  effect  as  the  delivery  of  the  property  itself  to  the  transferree. 
W.  U.  R.  R.  v.  Wagner,  65  111.  197. 

2993.  SAME — evidence  of  ownership.    Where  one  having  an  eleva- 
tor and  in  the  habit  of  purchasing  grain  for  others,  gave  a  warehouse 
receipt  stating  that  he  had  received  a  lot  of  corn  on  storage  for  the 
holders  of  the  receipt,  in  well  covered  cribs,  and  agreeing  to  hold  the 


376  RAILROADS,  WAREHOUSES, 

same  for  such  holders,  subject  to  their  order,  at  the  end  of  which  were 
these  words:  "subject  to  their  order,  for  all  advances  of  money  on  the 
same:"  Held,  that  the  latter  words  did  not  convert  the  receipt 
into  a  mere  pledge  and  render  the  corn  liable  to  an  execution  against 
the  party  giving  it,  issued  subsequently  to  the  date  of  the  receipt. 
Cool  v.  Phillips,  66  111.  216. 

2994.  ACT  REGULATING—  constitution.    The  act  of  April  25,  1871, 
to  regulate  public  warehouses  and  the  warehousing  and  inspection  of 
grain,  is  not  in  contravention  of  §  22,  art.  4,  of  the  constitution  of 
1870.    Munn  v.  People,  69  111.  80. 

2995.  The  act  of  1871  regulating  public  warehouses  and  the  inspec- 
tion of  grain  and  to  give  effect  to  art.  13  of  the  constitution,  and  which 
provides  a  maximum  rate  of  charges,  is  not  unconstitutional.    Munn 
v.  People,  69  111.  80. 

2996.  CONTRACT  TO  INSURE.    A  warehouseman  agreed  to  insure 
the  property  stored  with  him,  which  he  did  to  their  full  value,  and  on 
a  loss  prosecuted  the  company  in  good  faith  on  the  policy,  but  was 
defeated  on  the  ground  he  had  given  a  receipt  to  the  owner  at  his  re- 
quest:   Held,  that  the  warehouseman  having  complied  .with  his  con- 
tract, was  not  liable  to  the  owner  on  the  ground  he  failed  to  recover. 
Cole  v.  Favorite,  69  111.  457. 

2997.  WAREHOUSE  RECEIPTS—; possession  of,  is  possession  of  grain. 
Usage  has  made  the  possession  of  warehouse  receipts  equivalent  to 
the  possession  of  the  property  they  represent.    Broadwell  v.  Howard, 
77  111.  305. 

2998.  SAME — given  by  the  seller.    The  law  makes  no  distinction  in 
respect  to  grain  purchased  or  acquired  by  the  holder  of  such  receipts 
from  others,  and  those  acquired  from  the  warehouseman  himself.  The 
law  does  not  prohibit  him  from  selling  his  property,  and  if  he  does  so 
in  good  faith,  he  may  become  its  future  custodian;  and  the  fact  that 
he  keeps  a  public  warehouse,  is  sufficient  to  put  parties  on  inquiry  as 
to  the  ownership  of  grain  stored.    Broadwell  v.  Howard,-ll  111.  305. 

2999.  CREDITORS  OF  WAREHOUSEMAN.    Where  a  warehouseman 
purchased  grain  stored  by  him,  for  another  person  and  with  such  other 
person's  money,  and  took  up  his  outstanding  receipt,  held  by  the  ven- 
dor and  issued  a  new  receipt  to  the  person  for  whom  he  bought,  it 
was  held  that  the  grain  was  not  liable  thereafter  to  be  taken  in  exe- 
cution against  the  warehouseman.    Broadwell  v.  Howard,  77  111.  305. 

3000.  INTERMIXTURE — title  in  holder  of  receipt.    Where  a  con- 
signee of  grain  stores  the  same  in  a  warehouse,  and  the  same  is  inter- 
mixed with  other  grain  of  like  grade,  and  a  receipt  is  taken  for  the 
amount,  the  grain  being  no  longer  capable  of  identification,  the  owner 
parts  with  his  property  in  the  same,  and  the  consignee  to  whom  the 
receipt  is  given,  instead  of  being  a  bailee,  becomes  a  debtor  to  the 
owner.    Bailey  v.  Bensley,  87  111.  556. 

3001.  LIABILITY  OF  WAREHOUSEMAN — trover — grain  intermixed. 
Where  the  grain  is  mingled  with  other  grain  of  like  character  and 
grade  belonging  to  different  persons,  so  that  its  identity  is  lost,  upon 
the  refusal  of  the  warehouseman  to  deliver  upon  presentation  of  the 
proper  warehouse  receipts,  the  quantity  of  the  grain  of  the  grade 
called  for,  the  holder  of  the  receipts  may,  in  trover,  recover  damages 
according  to  the  extent  of  his  interest.    German  Nat.  Bank  v.  Mead- 
owcroft,  95  111.  124. 

3002.  LIABILITY — transfer  of  warehouse.    If  the  warehouseman 
transfers  the  ownership  and  possession  of  the  warehouse  or  elevator, 
the  person  succeeding  to  the  possession  of  the  warehouse  and  the  grain 
stored  therein,  will  be  held  to  the  same  liability  to  the  holders  of  ware- 


AND  EMINENT  DOMAIN.  377 

house  receipts  and  subject  to  the  same  remedies  as  the  original  pro- 
prietor.   German  Nat.  Bank  v.  Meadowcroft,  95  111.  124. 

3003.  FORWARDING.    The  business  of  warehousemen,  when  they 
forward  goods,  &c.,  ordinarily  consists  of  storing  produce  for  the  own- 
ers thereof,  and  of  shipping  or  forwarding  the  same  for  the  owner. 
The  legitimate  income  from  such  business  is  a  compensation  for  stor- 
age and  also  the  same  for  shipping  or  forwarding  the  produce.    North- 
rup  v.  Phillips,  99  111.  449. 

3004.  What  will  bar  charges  for  storage  and  insurance.    Bailey  v. 
Bensley,  87  111.  556. 

3005.  WAREHOUSE  RECEIPTS — negotiability.    The  statute  relating 
to  negotiable  instruments  does  not  embrace  warehouse  receipts  or  bills 
of  lading.    They  are  not  placed  on  the  same  footing  as  respects  the 
title  vested  in  the  assignee  of  bills  of  exchange  and  notes.    Burton  v. 
Curyea,  adhered  to;  Canadian  Sank  v.  McCrea,  106  111.281. 

3006.  A  warehouse  receipt  is  strictly  speaking  but  the  written  evi- 
dence of  a  contract  between  the  depositor  of  grain  and  the  warehouse- 
man.   The  law  implies  certain  duties  from  such  receipt  as  devolving 
upon  the  warehouseman  which  becomes  a  part  of  the  contract.    76. 

3007.  SAME—  transfer  of  as  passing  title  to  grain.    The  statute 
(§  24,  act  1871)  makes  the  endorsement  of  a  warehouse  receipt  evi- 
dence of  the  transfer  of  the  grain  it  represents,  the  same  as  the  actual 
delivery  of  the  grain  itself.    But  neither  of  these  acts  will  pass  the 
title  to  the  grain  which  the  seller  or  assignor  does  not  possess.    Cana- 
dian Bank  v.  McCrea,  106  111.  281. 

3008.  SAME.    The  receipt  stands  in  the  place  of  the  grain  it  repre- 
sents, and  the  possession  of  the  receipt  is  regarded  as  the  possession 
in  law  of  the  grain  itself;  and  as  the  warehouseman  is  not  required  to 
surrender  the  grain  until  the  return  of  the  receipt  and  the  payment  of 
charges,  one  who  obtains  it  under  such  circumstances  as  to  .charge 
him  with  notice  of  a  want  of  title  in  his  assignor,  the  real  owner  may 
recover  of  him  in  trover  the  value  of  the  grain  on  his  refusal  to  sur- 
render the  receipt  to  him.    Canadian  Bank  v.  McCrea,  106  111.  282. 

3009.  DELIVERY  TO  WRONG  PERSON.    A  warehouseman  will  be 
liable  to  the  party  storing  grain,  if  he  delivers  the  same  to  any  other 
person  without  authority  from  the  owner,  unless  the  latter  has  done 
some  act  or  acts  to  estop  him  from  denying  permission  to  make  a 
delivery.    P.  &  P.  U.  Ry.  v.  Buckley,  114  111.  337. 

3010.  A  sampler's  ticket  is  not  a  warehouse  receipt  in  the  sense 
that  term  is  used  in  the  statute.    /&. 

3011.  NEGOTIABILITY.    A  warehouse  receipt  for  a  certain  num- 
ber of  bushels  of  corn,  to  be  delivered  to  the  order  of  the  person  to 
whom  the  receipt  is  given,  at  a  certain  place,  in  sacks,  in  good  order, 
free  of  charges,  risk  of  fire  excepted,  is  not  a  negotiable  instrument 
under  the  law  of  Iowa.    M.  &  M.  Bank  v.  Hewitt,  3  Iowa  93. 

3012.  §  949  of  Iowa  Code,  authorizes  the  assignee  of  receipt  to  sue 
in  his  own  name,  subject  however  to  any  defense  or  set  off,  legal  or 
equitable  which  the  maker  had  against  the  assignor,  before  notice  of 
the  assignment.    M.  &  M.  Bank  v.  Hewitt,  3  Iowa  93. 

3013.  SAME— assignee  takes  subject  to  attachment.    A  warehouse- 
man who  has  given  a  receipt  which  entitles  the  holder  to  the  goods 
stored  upon  presentation  thereof,  is  liable  to  an  attaching  creditor  of 
the  bailor,  if  he  surrenders  the  goods  to  a  holder  of  such  receipt,  who 
purchased  the  same  after  the  date  of  the  attachment.   Smith  v.  Picket, 
1  Ga.  104. 

3014.  Under  a  statute  making  such  receipts  negotiable,  a  ware- 
house order  for  "corn  to  be  loaded  into  sacks  and  when  loaded  to  be 

-26 


378  KAILROADS,  WAREHOUSES, 

sent  down"  was  held  not  a  receipt  for  storage,  but  merely  an  agreement 
for  transportation.    Union  Sav.  Assoc.  v.  St.  L.  G.  E.  Co.,  81  Mo.  341. 

3015.  Under  such  a  statute  a  receipt  by  the  overseer  of  a  ware- 
houseman is  not  a  warehouse  receipt  so  as  to  be  negotiable.    Peoples' 
Bank  v.  Gagley,  12  Phila.  183:  Troutman  v.  Peoples'  Sank,  12  Id.  276. 

3016.  In  the  absence  of  statutory  provisions  such  receipts  are  not 
negotiable,  but  are  assignable  by  transfer  and  indorsement,  and  such 
assignment  will  pass  such  title  as  the  assignor  had  at  the  time  thereof. 
Solomon  v.  Bushnell,  11  Or.  277;  Gibson  v.  Stevens,  8  How.  384. 

3017.  Such  a  receipt  cannot  make  the  warehouseman  a  guarantor 
of  the  title  of  the  property  stored.    Mechanics  &  L.  T.  Co.  v.  Kiger, 
103  U.  S.  352. 

3018.  The  holder  or  assignee  of  such  receipt  takes  no  better  title 
than  if  the  goods  were  held  by  himself;  their  negotiability  such  as  it  is 
serving  only  to  cut  off  any  defenses  the  warehouseman  may  have. 
Louisville  Bank  v.  Boyce,lS  Ky.  42. 

3019.  The  transfer  by  indorsement  and  delivery  of  a  warehouse 
receipt  transfers  the  legal  title  and  constructive  possession  of  the 
property,  and  the  warehouseman  from  the  time  of  the  transfer  be- 
comes the  bailee  of  the  transferree.    Gibson  v.  Stevens,  8  How.  384; 
Harris  v.  Bradley,  2  Dill.,  285;  McNeal  v.  Hill,  1  Woolw.  96;  First 
Nat.  Bank,  v  Bates,  5  Gin.  Law  Bull.  — . 

3020.  It  is  only  after  notice  to  the  warehouseman  who  agrees  to 
hold  the  property  for  the  assignee  that  the  title  will  vest  absolutely  in 
the  latter.    Spangler  v.  Butterfleld,  6  Col.  356. 

3021.  Unless  the  warehouseman  by  his  receipt  agrees  to  deliver  to 
the  order  of  the  bailor,  the  receipt  will  not  pass  title  as  against  an 
attaching  creditor  before  notice  of  the  transfer  to  the  warehouseman. 
Hallgarten  v.  Oldham,  135  Mass.  1. 

3022.  The  transfer  of  the  receipt  clothes  the  transferree  with  con- 
structive possession  although  the  warehousman  has  no  notice,  and 
does  not  agree  to  hold  for  the  transferree.  Durr  v.  Hervey,  44  Ark.  301. 

3023.  In  Davis  v.  Russell,  52  Cal.  611,  it  is  said  there  is  no  reason 
why  the  same  rule  that  is  applied  to  bills  of  lading,  making  them 
transferable  without  notice,  should  not  be  followed  as  to  warehouse 
receipts.    In  support  of  this  see  Puckett  v.  Reed,  31  Ark.  131 ;  Gibson 
v.  Stevens,  8  How.  384;  Burton  v.  Curyea,  40  111.  320;  Second  Nat. 
Bank  v.   Walbridge,  11  Ohio  St.  311;    Cool  v.  Phillips,  66  111.  217; 
Broadwell  v.  Howard,  77  111.  305;   Cothran  v.  Ripy,  13  Bush.  495; 
Robson  v.  Swart,  14  Minn.  370;  Hale  v.  Milwaukee  Dock  Co.,  29  Wis. 
482. 

3024.  PLEDGE  OF  RECEIPT.    Warehouse  receipts  may  be  pledged, 
and  an  innocent  pledgee  will  acquire  title  superior  to  the  lien  of  the 
vendor  of  the  goods  represented  by  the  receipt,  where  the  latter  per- 
mits his  vendor  to  have  possession  of  the  receipt  in  such  a  manner  as 
to  enable  him  to  pledge  it.    Fourth  Bank  v.  St.  L.  C.  C.  Co.,  11  Mo. 
App.  333. 

3025.  A  warehouseman  having  in  store   his  own  property   may 
effectually  pledge  it  to  secure  his  own  debt  by  transfer  of  his  ware- 
house receipt.    Merchant's  &  M.  Bank  v.  Hibbard,  48  Mich.  118,    By 
statute  such  a  pledge  in  Iowa  is  made  invalid. 

3026.  A  pledge  by  delivery  of  a  warehouse  receipt  will  not  give  to 
the  pledgee  any  general  lien  for  debts  not  arising  from  the  relation  of 
pledgee.    /.  M.  AtJierton  Co.  v.  Ives,  20  Fed.  Eep.  894. 

3027.  A  warehouse  receipt  may  be  transferred  without  indorse- 
ment so  as  to  pass  title  to  the  property,  if  the  owner  makes  the  trans- 


AND  EMINENT  DOMAIN.  379 

f  er  with  that  intent,  in  cases  where  the  receipt  recites  that  the  property 
therein  mentioned  is  "deliverable  to  bearer."  Rice  v.  Cutler,  17  Wis. 
351. 

3028.  The  Wisconsin  statute  providing  that  warehouse  receipts 
may  be  transferred  by  indorsement,  and  what  effect  they  shall  have 
when  so  transferred,  does  not  operate  to  prevent  in  all  cases,  a  passing 
of  title  without  indorsement,  the  language  being  permissive  and  not 
imperative,  and  the  right  existing  independently  of  statute.    The  ob- 
ject of  the  statute  is  not  to  prevent  the  owner  of  property  from  pass- 
ing the  title  in  any  manner  previously  effectual  for  that  purpose,  but 
to  protect  those  dealing  with  persons  who  are  intrusted  with  such  evi- 
dence of  title  only  as  factors  or  agents.    Rice  v.  Cutler,  17  Wis.  351. 

3029.  PURCHASER  PROTECTED — against  fraud  of  'vendor.     The 
fact  that  warehouse  receipts  are  taken  in  discharge  of  prior  indebted- 
ness will  not  deprive  the  transferree  of  the  protection  to  which  he 
would  otherwise  be  entitled  as  an  innocent  purchaser  without  notice 
that  his  vendor  acquired  title  by  fraud.    Rice  v.  Cutler,  17  Wis.  351. 

3030.  TRANSFER  OF  TITLE  BY.    Where  the  evidence  showed  that 
grain  had  been  delivered  from  the  warehouse,  and  the  warehouse 
receipts  surrendered,  an  instruction  to  the  jury  to  the  effect,  that  if 
they  believed  from  the  evidence  that  the  receipts  in  evidence  were  not 
held  by  the  plaintiffs  at  the  time  of  the  levy  of  the  execution  offered 
in  evidence,  but  had  been  surrendered  to  the  warehouseman  prior  to 
that  time,  then  the  plaintiffs  were  not  entitled  to  any  of  the  property 
replevied  by  reason  of  their  once  having  held  such  receipts:  Held  that 
the  instruction  was  erroneous.    If  the  reason  of  the  surrender  was  the 
delivery  to  the  plaintiffs  of  the  grain  mentioned  in  them,  then  they 
were  most  certainly  entitled  to  the  delivered  grain,  because  they  had 
once  held  the  receipts  and  had  surrendered  them  for  grain  delivered 
in  exchange  therefor.    Nelson  v.  Mclntyre,  1  Bradw.  603. 

3031.  EIGHTS  OF  HOLDER.    The  grain  represented  by  the  receipt 
need  not  be  the  identical  grain  stored,  but  as  the  mass  of  grain  on 
hand  is  changed  by  successive  storage  and  shipments,  the  title  of  the 
holder  of  the  receipt  passes  by  operation  of  law  to  that  which  remains 
in  store,  and  he  is  entitled  at  any  moment  to  assert  his  title  by  requir- 
ing a  delivery  to  himself  of  the  grain.  German  Nat.  Bank  v.  Meadow- 
croft,  4  Bradw.  630. 

3032.  EFFECT  OF  THE  TRANSFER.     Upon  the  sale  of  property 
stored  in  a  warehouse,  the  indorsement  and  delivery  of  the  warehouse 
receipt  has  the  effect,  not  only  to  transfer  the  title  to  the  property  to 
the  indorsee,  but  also  to  give  him  a  right  of  action  for  any  breach  of 
duty  of  which  the  warehouse  company  was  guilty  in  respect  thereto 
at  any  time  during  the  bailment.    Sargent  v.  Central  Warehouse  Co., 
15  Bradw.  553. 

3033.  RIGHT  OF  THE  INDORSEE.     An  indorsement  in  blank  of  a 
warehouse  receipt  by  the  seller,  authorizes  the  purchaser  to  write  over 
such  blank  indorsement  only  a  contract  of  mere  assignment  of  the 
legal  title,  unlike  the  case  of  a  negotiable  promissory  note.    Mida  v. 
Geissman,  17  Bradw.  207. 


NOTE.— The  figures  in  the  Index  cite  paragraphs  of  hook  instead  of  pages. 


ABANDONMENT. 

of  proceedings  to  condemn. 

proposed  highway,  497,  498,  957. 

proposed  park,  958.  959. 

proposed  street,  939,  961. 

location  of  railroad,  1024. 

after  assessment  of  damages,  961. 

after  judgment,  939,  957-959. 
ABATEMENT. 

death  of  land-owner,  425. 

death  of  stockholder,  of  action  against,  2901 . 

plea  in, —denying  service  on  corporation,  1102,  1122,  1136,  1133,  1134. 

of  a  nuisance,  817. 
ABUSE. 

in  charges  by  corporation,  laws  to  prevent,  94, 1428, 1515. 

of  discretion  of  court,  463. 

of  power  to  condemn,  387,  389-391,393. 
ACCEPTANCE. 

of  dedication  for  streets,  neces6_ary,  1249. 

evidence  of  contract  of  prior  railway,  1463. 

ACCESS. 

to  lots,  obstructing  by  railway  in  streets— action,  237,  646,  677,  825,  830,  831,  834,  835 
840,  842,  865,  866,  904. 

obstructing  to  place  of  business,  908,  911,  912,  915,  916,  1500a. 

obstructing  to  depots  and  trains,  1503,  1505. 

to  books  and  papers  of  corporation,  1186. 
ACCIDENT — railroad  commissioners  to  investigate,  2636. 
ACCOMMODATION. 

of  passengers,  1499. 

at  stations  and  depots,  1319,  2130. 
ACKNOWLEDGMENT. 

of  railroad  mortgage,  1366. 

of  conditional  sale  of  rolling  stock,  1493,  1494. 
ACQUISITION  OP  PROPERTY  BY  RAILWAY. 

by  voluntary  grant,  1226. 

by  purchase,  1229. 

by  condemnation.  1213, 1512.    See  CONDEMNATION. 

for  what  uses  and  purposes,  1213, 1511. 

for  union  depot,  1511. 

for  landing,  1488.  1489. 

for  right  of  way  in  city,  339. 
ACTIONS. 

for  injuries  to  stock,  144 

for  track  in  street,  154,  237,  832,  833,  846-866. 
when  it  accrues,  423. 

entry  before  compensation,  240,  241. 

on  stipulation  to  make  and  maintain  crossing.  573. 

for  deviation  from  plans,  <fec.,  728,  734.  757,  758. 

on  prior  contracts— benefits  from,  1463. 

injury  in  common  with  public,  843-845,  863. 

special  damage  to  lot,  898. 

for  second  flood,  868,  869. 

successive  actions,  921-923. 

for  condemnation  money,  951,  953-955,  959. 


382  INDEX. 

ACTIONS  -Continued. 

by  sub-contractor  against  railway,  1091. 

in  what  county,  1097. 

power  of  railway  to  sue  and  be  sued,  1155. 
by  railroad  commissioners,  1474. 

where  brought,  1474. 
for  value  of  fence  made,  1817-1824. 

carrying  passenger  beyond  station,  2210,  2212,  2214,  2220. 
injury  for  want  of  brakemen,  2235. 
for  fines  and  penalties,  1506,  1807.  2087,  2103,  2126,  2128,  2145-2147a,  2148.  2152.  2235, 

2236,  2455,  2456,  2599,  2600,  2641,  2712. 
of  assumpsit,  2731. 
effect  of  change  of  law,  2104. 
uniting  causes  of,  2105. 
jurisdiction  of  justice,  2106. 
judgment,  when  bar  to  another,  2109. 
defense  to,  2108. 
costs  of,  2110. 

for  not  stopping  before  railway  crossing,  2101,  2103. 
qui  tarn,  2643. 

giving  preference  as  to  shipping,  2672. 
extortion.-evidence  of,  2696,  2712. 

not  before  rates  are  fixed,  2697,  2713,  2721,  2722. 

action  is  penal,  2715. 
for  unjust  discrimination,  2672,  2698. 

evidence  as  to  reasonableness  of  charges,  2699,  2700. 
treble  damages  for  extortion  2714. 
duty  of  railroad  commissioners  to  bring,  2719. 

in  what  county,  2719. 
for  extortion,  to  have  precedence,  2724. 
when  bar  to  further  condemnation,  792-795,  808. 
release  of  land-owner,  a  bar,  796-798. 
permanent  injury  by  nuisance,  795. 
to  recover  compensation,  808. 
on  chief  inspector's  bond,  2762,  2763. 
declaration  on,  2763. 
parties  to  suit,  2762. 
on  bond  of  warehouseman,  2766. 
for  obstructing  weighmaster,  2811. 
case,  issue  of  fraudulent  warehouse  receipts,  2956. 
against  warehouseman  for  non-delivery,  2986. 

ADAPTABILITY  OF  LAND  TO  USES. 

on  questions  of  value  and  damages,  671,  724,  764. 
ADDITIONAL  BUKDENS. 

compensation,  when,  847. 

damages  by  change  of  plan,  702. 

railway  crossings,  right  to,  265-267,  273. 

tracks  of  railway,  336,  349,  355. 

when  fee  of  street  is  not  in  city,  855. 
ADJACENT  LOT  OWNERS. 

consent  to  railway  in  street,  1286, 1263,  1265a,  1266,  1271,  1272,  1284,  1286. 
See  CITIES  AND  VILLAGES.— STREETS. 
ADJOURNMENT. 

of  proceeding  to  condemn,  66. 

of  stockholders'  meeting,  1182. 
ADMINISTRATOR. 

not  a  proper  party  in  condemnation,  425. 

liability  for  stock,  1208. 
ADMISSION. 

of  land-owner's  title  505-511,  516. 

of  corporate  existence,  1170. 

of  agent,  when  binds  corporation,  1191b. 

of  fact,  renders  proof  unnecessary,  2895,  2896. 

ADVANTAGES— setting  oft.    See  BENEFITS. 
AFFIRMATIVE. 

and  negative  evidence,  1904, 1905. 

on  whom  it  rests  on  appeal,  1041 
AGENCY. 

of  person  served,  may  be  denied,  1102, 1121,  1182. 

burden  of  proof  on  defendant,  1121. 
AGENT. 

of  corporation,  may  answer  bill  of  discovery,  114. 

when  directors  act  as  public,  290. 

exercise  of  eminent  domain  by,  333. 

of  shipper,  power  to  release  carrier,  2341. 


INDEX.  383 

AGENT— Continued. 

of  railway— embezzlement  by,  169. 

verbal  promises  of  not  evidence  in  condemnation,  730. 

service  of  process  on,  1099,  1101,  1103,  1106,  1107,  1110,  1112,  1117, 1119,  1124,  1125, 
1127,  1128,  1130,  1140,  1141. 

may  be  empowered  by  by-law  or  resolution,  1190. 

injury  to  stock  by,  1518. 

notice  to,  to  make  crossing,  2098. 

notice  to,  to  make  fence,  1816. 

to  complain  of  minors  getting  on  cars,  2122. 

power  of  railroad  commiesioners  to  examine,  2638. 

penalty — not  making  reports,  2641. 

ticket.    See  TICKET  AGENT. 
AID,  MUNICIPAL. 

consideration  for  reduced  rates,  1460, 1461. 
change  of  location  after,  1422. 
ALLEY,  vacation  of,  140. 
ALTERATION. 

of  plans  after  condemnation— action,  734,  757,  758 
of  by-laws.  1206. 

of  route  of  road— damages,  1234. 
of  crossings  and  approaches,  2098-2100. 
AMENDMENT. 

of  charters  by  special  laws,  3, 14,  46. 
of  old  eminent  domain  laws,  310,  311. 
in  condemnation  proceedings,  312,  455. 
in  vacation— making  new  parties,  464. 
when  duty  to  allow,  465.  466. 
of  verdict  or  report,  489. 
of  return  of  service  on  corporation,  1100. 
of  by-laws—recording,  1173?  1206. 
of  charter,  effect  on  subscription,  1192a,  1192h. 
ANIMALS. 

willful  injury  to,  by  engineer,  175,  2084. 

cruelty  to,  on  transportation,  168. 

lien  of  carrier,  for  watering,  &c.,  168. 

killing  through  want  of  fence  in  city,  144, 148. 

injury  for  want  of  fence— at  large,  1518,  1530, 1532. 

at  large,  will  not  defeat  action,  1606,  2083. 

place  of  getting  on  track,  1566,  1572,  1573. 

what  animal  protected,  1590. 

place  of  killing  not  material,  1606. 

common  law  liability  for  injury  to,  1654,  1689. 

for  gross  negligence  or  willful  act,  1654, 1656,  1657-1660-1664,  1670, 1673, 1675. 1677 
1734,  2084. 

what  is  gross  negligence,  1661-1664. 
negligence  must  be  proved,  1674, 1676, 1680. 
no  liability,  if  no  negligence,  1658,  1659,  1679. 
burden  of  proof  to  show  negligence,  1669, 1676. 
no  right  on  track,  1655. 
trespassing  on,  1684. 

when  illegally  at  large,  1730,  1745-1747, 1732-1734, 1748-1754,  1756-1759. 
when  injury  might  have  been  avoided,  1661,  1665-1668,  1671, 1681,  1682,  1684,  1742-1744 
duty  to  use  all  care  to  save,  1666-1668, 1681,  1682. 
unusual  speed,  as  negligence,  1685. 
concealed  by  grass,  &c.,  1802-1806. 
leaving  on  track,  1807. 
defense  to  action  for  killing,  1819. 

company  released  from  duty,  1719-1727. 

contributory  negligence  of  plaintiff,  1735,  1736,  1737,  1738,  1739,  1740,  1741,  1742 
1745-1747. 

comparative  negligence,  1927,  2011,  2012,  2184. 
declaration  for  killing,  1690-1718. 
declaration  for  injury  in  city,  1683. 
damage  to,  for  want  of  fence,  1518. 
frightening,  2084. 

ANNUAL  MEETING  OF  STOCKHOLDERS 

election  of  directors  at,  1175. 

change  of  mode  of  electing,  at.  1175. 

report  01  corporate  affairs  at,  1183. 

See  STOCKHOLDERS. 
ANNUAL  REPORTS. 

of  directors  to  auditor,  61. 1427. 

of  railroad  commissioners,  2436,  2634. 
ANSWER-on  bill  of  discovery,  114, 115. 

not  allowed  to  petition,  to  condemn,  419^122,  515,  519. 


384  INDEX. 


APPEAL. 

in  condemnation,  by  heirs— not  executor,  1063. 

to  review  taxation  of  cost,  1064. 

statute  giving  entry  pending,  repealed,  1065. 

failure  to  prosecute  after  reversal.  1066. 

bond  for  possession  pending,  1067. 

ripht  to  possession,  pending,  991,  1068. 

jury  trial  on,  211,  283. 

right  to— under  law  of  1852,  283. 

from  assessment  to  supervisors,  284,  1038. 

assessment  by,  on,  void,  285. 

laying  out  road,  expediency  not  involved,  374,  375. 
plankroad — final  order  from  which  it  lies,  1046. 
lies  when  freehold  is  involved,  1047. 
laying  road — joinder  in  by  tenants  in  common,  1039. 

when  separate  ones  to  be  taken,  1039. 

lies  only  after  order  to  open,  1040. 

who  has  the  affirmative,  1041. 
questions  involved  in,  1042. 

jurisdiction  and  regularity,  1042. 

effect  of  reversal,  1043. 

county  liable  for  costs,  1044. 

none  from  order  refusing  to  open,  1045. 
from  order  widening  street,  1056. 
condemnation  for  railroad,  1048-1055,  1058. 

under  law  of  1845, 1048. 

a  constitutional  right,  1054. 

from  county  to  supreme  court,  1058, 1059.     ' 

when  it  lies  and  practice,  1037. 

separate  by  each  owner,  462,  1060. 

right  of  plaintiff  to  dismiss  on,  1049. 

wnen  by  certiorari,  1049, 1050. 

width  of  right  of  way  on,  1051. 

questions  involved— title,  1053. 

dismissal  of  crQss-petition,  1061 . 

what  are  final  orders,  1046,  1061,  1062. 

from  order  disposing  of  condemnation  money,  1062. 

service  of  notice  of,  1055. 

judgment  on,  as  to  right  to  condemnation  money,  1011. 

right  to  enter  pending.  1057. 

from  inspection  of  grain,  2797. 
notice  of,  2798. 
rules  as  to  manner  of,  2798. 
APPEARANCE. 

gives  jurisdiction  of  the  person,  398,  480. 
obviates  necessity  of  notice,  439. 
APPLICABILITY— of  general  law,  42,  43. 
APPOINTMENT. 

of  commissioners  under  prior  laws,  397,  473-481. 

record  must  show,  485,  530. 
of  agents,  &c..  by  directors,  1188. 

by  resolution  or  by-laws,  1190. 
of  railroad  commissioners,  2625. 
of  chief  inspector  of  grain,  2756. 
of  assistants,  2756. 
of  registrar  and  assistants,  2756. 
of  committee  of  appeals,  2797. 
of  state  weighmaster  and  assistants,  2802. 
APPORTIONMENT. 

of  taxes  between  city  and  county,  188. 
of  compensation  between  landlord  and  tenant,  1022,  1023. 
of  debt  between  stockholders,  2818,  2832,  2911. 
APPRAISERS. 

to  assess  damages  on  condemnation,  473-481,  530. 
recital  of  appointment,  530. 
APPROACHES. 

to  bridge  in  street— action  for,  834,  835,  899-901. 
at  street  crossings,  2089-2097a. 

notice  to  make,  2098. 
over  new  streets,  duty,  1296. 
to  union  depots— condemnation,  1512. 
to  depots  and  trains,  2097a. 
to  warehouses,  2097a. 

See  CROSSINGS,  HIGHWAY  CROSSINGS,  STRKKT  CROSSINGS. 
APPROVAL. 

of  route  and  termini  of  railroad,  334,  1149,  352. 
of  consolidation,  1422,  1411. 


INDEX.  385 

APPURTENANCES— condemnation  for,  by  railway,  416. 
ARBITRATION— as  to  compensation— award,  how  enforced,  1027. 
ARGUMENT— right  to  open  and  close,  523. 
ARRAY  OF  JURY— challenge  of,  457,  470. 
ARREST. 

by  captain  or  conductor,  2551. 
for  baggage  smashing,  2274. 
ARTICLES. 

of  incorporation,  what  to  show,  1152,  1153. 
recording  of,  1152,  1156. 
must  be  filed,  1155, 1156a. 
as  evidence,  1171c. 
when  certified  copy  is,  1171,  1171a. 
law  curing  defects  in,  1463. 
of  union  depots,  1507, 1508. 
of  association,  petition  and  contents,  1508. 
of  consolidation,  1394,  1424. 

certified  copies,  evidence,  1394,  1424. 
to  be  filed,  &c.,  1424. 
ARSON— of  railroad  bridge,  172-174. 
ASSAULT  AND  BATTERY, 
of  passenger,  2280,  2331. 

by  conductor— words  no  justification,  2282. 
ASSENT. 

of  city,  to  track  in  street,  60,  118-136,  157,  159-101.  359,  346, 1235,  1236,  1236a,  1236b. 
not  necessary  for  crossing  street,  129, 160,  359. 
to  use  of  streets,  1261,  1261a,  1265a,  1276. 
sufficiency  of  ordinance,  giving,  1261b,  131,  1273. 
to  depot  and  track  in,  1513. 
mode  of,  for  track  in  street,  119,  121,  127, 128. 
condition  to  grant  of  city,  1263a. 
of  adjacent  lot  owners  to  track  in  street. 

is  necessary,  151-156,  1263,  1265a,  1266,  1271,  1272,  1286. 
of  shipper,  necessary  to  a  limitation  of  carrier's  liability,  2343-2345a,  2351. 
a  question  of  fact,  2351,  2353,  2358,  2360,  23(19,  2378,  2397. 
must  be  shown  by  carrier,  2364-2370,  2388,  2390,  2393-2395,  2397,  2399-2411, -2418, 

2420,  2421,  2427,  2429a,  2430,  2435,  2436. 

burden  of  proof,  2345,  2393,  2395-2399,  2403-2405,  2410-2412,  2415,  2417,  2418,  2420. 
presumption  as  to,  2344,  2395,  2399,  2400,  2401,  2402,  2404,  2405. 

ASSESSMENT  OP  COMPENSATION  AND  DAMAGES. 

by  whom,  284,  285. 

right  to  jury  in,  286. 

when  separate  as  to  each  tract,  454,  460^163. 

in  separate  items,  700. 

as  to  fruit  trees  separately,  600. 

necessary,  502.  503. 

as  of  date  of  filing  petition,  681. 

second  on  change  of  work,  702. 

basis — not  what  owner  would  take,  711. 

confined  to  land  in  petition,  771,  772. 

second  a*  to  land  cut  off,  772. 

covers  all  future  damages,  792-795. 

includes  costs  and  expenses,  1035.  , 

evidence  of  trespass— not  proper,  1222. 

appeal  lies  from,  1048. 
ASSESSMENT. 

of  city  to  meet  damages,  360. 

of  shares  of  stock,  1198. 

See  DAMAGES. 
ASSIGNEE  OF  STOCK. 

not  protected  as  a  bonafide  purchaser,  1201c. 

rights  against  execution  creditors,  1201d,  1201f . 

when  required  to  indemnify  assignor,  1201e. 

rights  between,  and  assignor,  1200f,  1201b. 

See  STOCK  AND  STOCKHOLDERS. 
ASSIGNMENT. 

lien  of  laborer  not  assignable,  1076. 

of  stock— in  corporation,  1155,  1200,  1200b. 
by  issue  of  new  certificate  1200e,  1200d. 
equitable  1201,  1201b. 

equitable,  passes  only  equitable  title,  1202a,  1202b. 
not  legal,  enforced  in  equity,  120le. 
in  absence  of  by-laws,  1202c. 

§ood  inter  partes  without  entry  in  books,  1201a. 
y  indorsement  and  delivery,  when  good,  1202c. 
—27 


386  INDEX. 

ASSIGNMENT-Continued. 

liability  of  corporation,  refusing  to  enter,  1202. 

new  certificate  not  necessary,  1202d. 

individual  liability  of  assignee,  2861. 

liability  to  creditors  as  between  assignor  and  assignee,  2862. 

assignee  for  creditors,  necessary  party  to  bill,  2886. 

See  also,  STOCK. 
of  warehouse  receipts. 

rights  of  assignee,  2971,  3012,  3013,  3029. 

See  WAREHOUSE  RECEIPTS. 
for  benefit  of  creditors  by  warehouseman. 

chancery  jurisdiction,  2967. 

assignee,  when  liable  for  conversion,  2974. 

takes  no  title  to  grain  of  others,  2975. 
ASSUMPSIT. 

for  damages  awarded,  955,  956. 

for  value  of  land  taken,  995. 

recovery  of  fine  or  penalty,  2781. 

against  warehouseman,  for  non-delivery,  2984,  2988. 

measure  of  damages,  2985. 
ATTACHMENT. 

of  rolling  stock — conditional  sale,  1498. 

of  witness  for  contempt,  2639. 

of  grain  in  store  before  notice  of  transfer,  3021 . 

Of  stock  2928,  2934. 

creditors,  right  to  condemnation  money,  1010. 

ATTEMPTS,  to  injure  railroad  property,  173. 
ATTORNEY. 

may  sign  petition  to  condemn,  402. 

power  of  president  to  employ,  1191, 
ATTORNEY'S  FEES. 

taxed  as  costs  in  lien  cases,  1092. 

in  action  for  killing  stock,  1794-1799,  1518. 
notice  of  claim  for,  1798. 

action  for  neglect  as  to  scales,  2599,  2600. 

action  for  extortion,  2714. 
ATTORNEY  GENERAL. 

counsel  to  assist,  when,  1474,  2719. 

to  enforce  repairs  by  railway,  2636. 

to  prosecute  under  direction  of  railroad  commissioners,  2042. 
consent  to  dismissal,  2719. 

AUDITOR,  annual  reports  to,  61,  1427. 
AUCTION,  sale  of  damaged  grain,  at,  2766. 
AUTOMATIC  COUPLINGS. 

for  cars,  2444. 

signals  at  railroad  crossings,  2726,  2727. 

railroad  commissioner  may  order  disuse  of,  2726. 
AVERAGE. 

of  loss  of  mixed  grain  in  warehouse,  2976. 

of  the  evidence  Dy  jury,  761,  762. 
AWARD  OP  COMPENSATION. 

award  construed,  1026. 

enforcement  of,  1027. 

acquiescence  in,  1032. 

AWNING,  of  station  house,  too  near  track,  2137. 

AX,  to  be  kept  in  passenger  cars,  2443. 

AYES  AND  NOES,  call  on  passage  of  ordinance  140. 

BADGE. 

officers  of  railway  to  wear,  2338. 

not  to  exercise  powers  without,  2338. 
BAGGAGE. 

malicious  mischief  to,  176. 

smashing,  fine,  &c.,  for,  2274. 

checks  to  be  given  for,  2236. 

penalty  for  refusing  to  give,  2236. 

checks  as  evidence,  2237,  2288,  2246,  2248,  2266. 

what  included  in,  2242,  2243,  2245,  2251,  2252,  2255,  2256,  2259,  2260,  2262 

liability  for  lost,  2237-2273. 

liabilty  for  over  other  lines,  2249. 

contract  must  be  shown,  2244. 

when  may  store,  and  be  liable  only  as  warehouseman,  2257,  2258,  2263-2265,  2269-2273, 

owner  of  sleeping-car  not  liable,  2261. 
See  COMMON  CAHIUEH. 


INDEX.   .  387 

BAGGAGE-MASTER. 

criminal  liability  for  injury  to  baggage,  176. 

to  wear  badge,  2838. 
BAILMENT. 

rolling-stock  sold  on  credit,  1493. 

on  sale  of  grain,  2990. 

when  consignee  is  not  a  bailee,  3000.  . 

BANK,  liability  of  the  stockholders  to  creditors,  2848,  2849,2851,  2855-2857,  2859,  2860,  2902. 
BANKRUPTCY. 

of  corporation,  no  defense  to  suit  against  stockholders,  2834,  2877 . 

assignee  may  collect  unpaid  subscription,  2834. 
BARS. 

leaving  down.  1608. 

at  farm  crossings — leaving  down,  1807. 

notice  to  make  or  repair,  1816. 

See  FARM  CROSSINGS. 
BELL  ON  ENGINE— See  SIGNALS. 

BENEFITS. 

compensation  in,  194,  584,  489,  631. 

land  for  park,  paid  in,  591,  641. 

by  drainage  system,  not  under  eminent  domain,  204. 

from  extending  a  street  under  former  laws,  340. 

from  laying  street,  set  off,  589. 

not  allowed  against  compensation,  489,  581,  688,  689. 

not  set  off  as  to  land  taken,  592,  603,  608,  644,  645,  698,  706. 

if  done  renders  proceeding  void,  1034. 
as  against  damages  to  land  pot  taken. 

•    special  may  be  set  off,  581,  584-587,  593,  594,  605,  616,  625,  639,  652,  645,  655,  706,  708. 
709,  903,  608,  633,  636. 

only  special  against  damages,  688. 

from  construction— not  location,  582. 

not  those  common  to  other  lands,  581,  582,  596,  688,  910. 

only  special  under  law  of  1852,  596.  603,  605,  608. 

not  to  other  land  of  owner,  597,  598. 

to  be  considered  as  to  whole  land  left,  639,  910. 

to  one  part  not  allowed  against  another  part,  646,  598. 

what  benefits  set  off  against  damage,  606,  641,  652,  634. 

under  law  of  1845,  585. 

considered  on  question  of  depreciation  of  part  left,  903. 
shown  by  opinions  of  witnesses,  733. 

BENEVOLENT  INSTITUTIONS-not  subject  to  be  taken,  1072. 
BILL. 

creditors  to  enforce  stockholders  liability,  2887. 

of  discovery,— answers  by  corporation,  114, 115. 

of  lading,  as  a  contract  limiting  carrier's  liability,  2376-2378,  2393,  2395-2398,  2399,  8403 
2405,  2410-2412,  2415,  2417,  2418,  2421 . 

duty  of  railway  to  give  weight  in,  2728. 
BOARDS,  AT  ROAD  AND  STREET  CROSSINGS. 

required  by  statute,  1825. 

liability  for  injury  resulting  from  neglect  of  duty,  1826. 

BOARD  OF  DIRECTORS— corporate  powers  vested  in,  1175. 
BODILY  INJURY— from  malicious  mischief,  171. 
BOND. 

for  possession  of  land  pending  appeal,  930,  991, 1065,  1067 
of  railroad  commissioners,  2627. 
of  warehouseman,  2738. 

action  on  and  for  what,  2766,  2776. 
of  chief  inspector  of  grain,  2756. 
of  assistant  inspectors,  2756. 

liability  of  sureties  on,  2761. 

action  on,  2762,  2763, 
of  committee  on  appeals,  2799. 
of  weighmaster,  2809. 

BONDS  OF  RAILWAY  COMPANIES, 
limitations  on  issue,  87-90, 1376. 
issue  how  authorized,  1469. 

notice  of  meeting,  1469. 

record  of  order  for,  1470. 
for  money  by  union  depot,  1514. 

mortgage  of  property,  &c.,  1514 
issue  to  secure  loan,  1338,  1467. 
validity  of  mortgage  securing,  1338. 
gift,  loan  or  sale  on  credit,  90. 
convertibility  into  stock,  1338,  1358,  1467. 


388  INDEX. 


BONDS  OP  RAILWAY  COMPANIES— Continued. 
retiring,  by  taking  lots,  1367. 
purchaser  takes  subject  to  consolidation,  1407. 

BOOKS  OF  CORPORATION. 

to  be  kept  at  office  in  state,  61, 1114. 

where  to  be  kept  and  what  to  show,  61, 1174. 

right  of  inspection,  61,  1186. 

record  of  capital  stock,  61, 1174. 

to  show  corporate  acts,  1106. 

prima  facie  evidence  of  incorporation,  1166. 

to  show  organization,  1167. 
of  subscription  for  union  depots,  1515. 

BOOKS  OP  STOCK. 

open  to  public  inspection.  1174. 

to  show  amount  of  capital  stock,  1174. 

to  show  names  of  owners  and  amount  paid,  1171,  1174. 

transfers  of  stock,  1174. 

names  and  residence  of  officers,  1174. 
right  of  stockholders  to  examine,  1186,  1471. 
for  registry  and  transfer  of  stock,  1471. 
liability  for  refusing  to  enter  transfer,  1202. 

not  if  stock  is  void,  1381. 
transfer  on,  not  necessary  to  pass  equitable  title,  1200f . 

not  on,  subject  to  execution,  1201d,  1201f,  12011). 

not  on,  good  inter  Cartes,  1201e. 
of  warehouse,  open  to  inspection,  105. 
See  STOCK— STOCKHOLDERS. 

BORROWING  MONEY. 

power  to  issue  mortgage  bonds  for,  1338. 
power  to  borrow,  1467-1470,  2941 . 
power  of  union  depots,  1514. 

BOULEVARD— condemnation  for,  348,  950. 
BRANCH  ROAD— power  to  condemn  for,  330,  353,  363. 

BRAKES. 

operated  by  steam,  2229,  2234. 
penalty  for  neglect  to  apply,  2233. 

BRAKEMEN. 

one  for  every  two  passenger  cars,  2229. 

number  for  freight  trains,  2234. 

damages  and  penalty  for  neglect,  2235. 

contributory  negligence  in  respect  to,  2230-2232. 

to  wear  badge,  2:138. 

injury  to,  from  defective  coupling,  2445-2449. 

BRIDGE. 

removing  signal  light  from,  171. 
injury  to,  172, 173,  174. 
condemnation  for  abutment  of,  263. 
over  another  railroad,  554. 
must  allow  the  water  to  pass,  867. 
overflowing  land  by  catching  drift,  1243. 
liability  for  obstructing  water  by,  1398. 
in  street— action  by  adjacent  owners,  826. 

liability  of  city  for,  8*4.  839,  840. 
approaches  to  in  street,  liability  of  city,  &%,  900,  901. 
on  navigable  streams,  1235. 
over  other  streams,  1236, 1236c. 
when  treated  as  built  by  city,  1244. 
for  cars— duty  as  to  connections,  1487. 
over  highway,  when,  2097a. 
stopping  trams  at,  2101-2110. 
powers  of  railroad  commissioners  over,  2636. 

BRIDGE  COMPANY— in  what  county  sued,  1097. 
BUCKETS— leather  for  passenger  cars,  2443. 
BUILDING. 

conspiring  to  injure  railway,  172. 

destroyed — measure  of  damages,  611. 
value  of  defrrix  when  deducted,  611. 

value  of  land  from,  658. 

injury  to  railway  in  street,  902. 

from  bridge  in  street,  826,  835,  839,  840, 900,  901. 

removal  from  land  after  condemnation,  1024. 

of  jail,  no  action  by  adjacent  owner,  805. 

of  railway— condemnation  for,  1213. 

stipulation  as  to  depot  on  question  of  damages,  732. 


INDEX.  389 

BULK. 

transporting  grain  in,  3562 . 
weighing  grain  in,  2599,  2738-2731. 
when  grain  in,  may  be  refused,  2607. 

BURDEN. 

attaching  new  or  further,  143, 149,  232,  241. 
new,  imposed  only  under  eminent  domain,  1439. 

BURDEN  OF  PROOF. 

as  to  damage  to  land  in  cross  petition,  777. 

to  show  title  and  damages,  on  appeal,  1041. 

on  plea  in  abatement  denying  agency,  1121. 

as  to  proper  execution  of  mortgage,  1357. 

as  to  how  long  road  has  been  open,  1533. 

as  to  negligence,  1647,  1653,  1669, 1783. 

of  payment  of  owner  for  fencing,  1721,  1722. 

of  owners  contract  to  fence,  1727,  1785,  1786. 

as  to  time  in  which  to  fence,  1532-1535. 

to  show  plaintiff's  negligence,  2079,  1784. 

that  neglect  caused  the  injury,  1836,  18:38,  1839,  1847,  1848. 

of  due  care  of  plaintiff  to  avoid  injury,  2183. 

to  show  carrier's  receipt  of  property,  2266. 

to  show  shipper's  assent  to  limiting  carrier's  liability,  2393,  2395-2399,  2403-2405,  2410- 

2412, 2415,  2417,  2418, 2420. 
as  to  negligence  in  escape  of  lire,  2485,  2486,  2510,  2516. 

BURIAL  LOTS— measure  of  damages  on  condemnation,  764,  765. 
BURIAL  EXPENSES— of  person  killed  on  train,  &c.,  2950. 
BURNING— of  bridge,  172-174. 

BUSINESS. 

injury  to  capacity  of  railway  for,  by  a  crossing,  564,  565,  578,  579'. 
obstructing— of  railway  by  strike,  2553. 
office  ol  railway,  place  of,  1153. 
condemnation  of  land  necessary  for,  1213. 
injury  to,  by  condemnation,  701. 

cost  of  removal  of  place  of,  692. 

profits  of,  as  damages  on  condemnation,  657,  660,  661. 
decline  in,  as  evidence  of  damages,  911-913,  915-920. 

BY-LAWS  OF  RAILWAY. 

implied  power  to  adopt,  1157b. 
regulating  stock  and  voting,  1157c. 
bind  members,  11571). 

as  to  strangers,  1157c. 
creating  personal  liability,  1157d. 
character  of,  1157.  1157e. 
reasonableness  of,  1157b. 
estoppel  of  stockholders  to  question,  1157h. 
copy  of  to  be  recorded,  1173. 
amendment  of  1173,  1206. 

to  fix  number  of  directors  and  mode  of  election,  1175,  1187. 
compensation  of  officers  fixed  by,  1177. 
for  converting  bonds  into  stock,  1338, 1467. 
ae  to  officers  and  their  duties,  1188. 
may  appoint  agents  by,  1190. 
for  regulation  of  transfers  of  stock,  1200,  1200b. 

CANADA  THISTLES. 

bringing  into  state,  163, 164. 
duty  to  destroy,  165. 

CANAL  TRUSTEES. 

grant  to  railroad,  not  in  violation  of  rights  of,  244. 

canal  may  be  condemned,  325. 

railway  over,  1225. 

receipt  and  delivery  of  grain  at  crossing,  2624. 

CANCELLATION. 

of  certificate  of  stock  fraudulently  issued,  I201c. 

of  coupon  ticket,  170. 

of  warehouse  license,  2637. 

of  warehouse  receipts,  2742,  2743,  2755. 

CAPACITY.  . 

of  railway  for  business  impaired,  564,  565. 
to  do  business,  injured,  576,  578,  579. 
of  land  for  other  uses,  694,  695,  723,  724.' 
to  commit  crime,  2127. 
See  DAMAGES. 


890  INDEX. 

CAPITAL  STOCK. 

office  for  transfer  of  shares,  61 . 
increase  of.  87, 1306. 

limitation  on  power,  1306. 

notice  before,  87, 1306,  3941. 

all  to  be  taken  before  corporation  exists,  538,  115(ig,  lllis. 
limited  by  articles  of  incorporation,  1153. 
to  be  shown  in  articles,  1153. 
evidence  of  its  subscription,  1171. 

powers  of  directors  to  increase,  1179a,  1307-12071),  1:-JS5I>. 
limitation  on  issue  of,  1376. 
fictitious  increase,  1376. 
constitutional  restriction,  1383. 
who  may  increase,  I385b. 
increase  of,  3941,  3945. 
who  entitled  to  new  stock,  1385c,  1307c 
a  trust  fund,  1197,  1304a. 
all  to  be  taken  to  enforce  subscription,  1198. 

stockholder's  liability,  3845. 
creditors  lien  on,  1204. 

shareholder's  notice  of  trust  character,  1203e. 
liable  to  taxation,  1400. 
See  CORPORATION,  INCORPORATION,  STOCK  AND  STOCKHOLDERS,  INCREASE  OP  CAPITAL. 

CAPTAIN  OP  STEAMBOAT— police  powers  of— arrest,  3549a,  2951. 

CAR  HOUSE— malicious  mischief  or  injury  to,  171,  174. 

CABS. 

injury  to— malicious  mischief,  171,  174. 

offenses  on,  jurisdiction,  178. 

injury  by,  to  stock,  1518. 

leaving  on  crossings,  2111. 

minors  climbing  on,  3122-3126. 

duty  to  furnish  enough,  2140,  2141. 

liability  for  defects  in  foreign,  3481. 
CASE. 

by  land-owner  for  deviation  from  plans,  738. 

against  corporation  for  not  transferring  stock  on  books,  1202. 
railway— not  delivering  grain  as  directed,  2S15. 

for  issues  of  fraudulent  warehouse  receipts,  2956. 
CASHIER— service  of  process  on,  1099,  1114. 
CATTLE. 

injury  to.    See  ANIMALS,  FENCING. 

delay  in  transporting.    See  COMMON  CARRIER. 
CATTLE-GUAEDS. 

power  of  cities  to  require,  144, 1280. 

land-owner  has  no  right  to  make;  1009. 

duty  of  railroad  to  make  and  maintain,  1518. 

not  an  element  of  damage?  602. 

power  of  the  state  to  require,  1442. 

In  cities,  144,  1280,  1575,  1582,  1596. 

allowing  to  till  up,  1591a. 

evidence  of  sufficiency,  1600, 1601. 

where  required,  1625. 

liability  for,  same  as  for  fencing,  1611. 

injury  to,  1807. 

See  FENCING. 

CAUSE  OF  INJURY. 

want  of  fence  as,  1591,  1592,  1606,  1672,  1673,  1681. 

neglect  to  give  warning  on  approaching  crossingj  1836-1839,  1929. 

instruction  ignoring  the  question  whether  omission  was  the  cause,  2201. 

See  NEGLIGENCE,  CONNECTION  OP  NEGLECT  WITH  INJURY. 
CEMETERY— evidence  as  to  damages  to,  764,  765. 
CERTAINTY. 

in  verdict  as  to  compensation  and  damages,  536. 

in  judgment  as  to  land  condemned,  403,  538. 
CERTIFICATE. 

of  indebtedness  of  railway,  1075. 

of  organization  and  filing  of  proof,  1171a. 

of  publication  of  notice,  448. 

of  laying  road  by  commissioners,  450-452. 

of  ticket  agent's  authority,  2556,  2559. 

of  petition  for  incorporation,  1508. 

of  incorporation  of  union  depot,  1508,  1509, 
filing  copy  with  secretary  of  state,  1509. 

of  weighmaster  conclusive,  3803. 

of  full  payment  of  capital  stock,  3837,  2838. 


INDEX.  391 


CERTIFICATE— Conttned. 

of  sale  of  stock  on  execution,  2937. 

transfer  of  stock  on  books  from,  2937,  2938. 
of  stock,  new  on  forfeiture,  1192. 

issue  of  new  on  transfer,  1200c. 

presumption  in  favor  of  new  issue,  1200e. 

commercial  qualities,  1201e. 

as  collateral  security— rights  of  holder,  1201c. 

transfer  as  against  eqyities  of  corporation,  1201e. 

new— not  necessary  to  transfer,  1203d. 

new,  to  purchaser  on  execution,!2937,  2938. 

CERTIFIED  COPY. 

of  articles  of  incorporation,  1155, 1171a,  1171b. 
of  certificate  of  incorporation,  1509. 
of  articles  of  consolidation,  1394. 
See  EVIDENCE. 

CERTIORARI. 

appeal  by,  from  condemnation,  1050. 
right  of  petitioner  to  dismiss  on,  1049. 
CHALLENGE. 

of  array  of  jury,  457. 

number  of,  on  condemnation,  482,  483. 

CHANCERY. 

bill  of  discovery  and  answer,  114. 

county  court,  has  no  chancery  jurisdiction,  400. 

jurisdiction,  as  to  condemnatton  of  railway  crossings,  1307. 
over  change  of  street  crossings,  2090. 

appointment  of  receiver.  2600. 

enforcement  of  stockholder's  liability,  2815,  2817,  2879-2887,  2907,  2908. 
by  creditor's  bill,  2828,  2830-2832. 

compelling  corporation  to  <  ollect  subscriptions,  2829." 

attacking  judgment  for  fraud  by  stockholder,  2833. 

sufficiency  of  Dill  by  creditor  against  stockholders,  2887. 

contribution  between  stockholders,  2914. 

enforcing  liability  of  managing  officers,  2919. 

assignment  by  warehouseman  for  creditors,  2967. 

See  REMEDY. 
CHANGE. 

of  charter— effect  on  subscription,  1192a,  1192h. 

of  consignment  before  delivery,  2622-2624. 

of  grade  of  streets,  809,  813-815,  818-820,  822,  824,  886,  1250,  1280. 

of  law,  which  governs,  309,  315-318. 

effect  on  pending  proceedings,  316-320. 

of  location  of  railroad,  1422,  1225a,  1192h. 

of  plans— additional  damages,  702,  734,  757,  758. 

of  possession  under  chattel  mortgage.  1340. 

of  owners  of  road — duty  to  fence,  1540,  1541. 

of  venue,  on  condemnation,  490. 

of  use  of  property,  277. 

CHARGES. 

power  of  railway  to  fix,  77-83. 

regulation  of,  68,  1320. 

fixing  rates  of  by  railroad  commissioners,  75,  76. 

power  of  state  to  regulate,  77,  78,  81,  83,  84,  86,  2646-2652. 

to  fix  rates,  77,  81,  83,  1320,  1428. 

to  regulate,  of  warehouses,  2765. 

acts  regulating,  held  valid,  78-81,  85,  86. 
when  extra  may  be  demanded,  1323,  2668 
action  for  overcharge,  75. 

penalty  for,  76. 
when  extortion,  2645. 

laws  to  prevent,  94. 

evidence  of  unreasonableness,  2699,  2700. 
rates  must  be  fixed  before  action,  76,  2697,  2721 . 
rates  fixed,  prima  facie  just,  2699. 
schedule  of,  made  evidence,  2720. 
must  be  without  unjust  discrimination,  2673. 
evidence  must  show  discrimination  is  unjust,  2698. 
regulation  of,  for  inspection  of  grain,  2756. 
of  public  warehouses,  2764,85. 

publication  of  schedule  of,  2764. 

maximum  rates  of,  80,  102,  2764. 
maximum  of  railway,  76-81,  1428. 
right  of  corporation  to  fix,  limited,  77. 
right  and  power  of  state  to  limit,  08. 
contracts  reducing  to  induce  aid,  1460,  1461. 


392  INDEX. 


CHARITABLE, 
corporations,  46. 
institutions,  335,  1072. 

CHARTER. 

amending  by  special  laws,  3. 14. 

amendment  of,  3,  14,  46,  1192a. 

extension  of,  46, 1172. 

effect  of  constitution  on,  45,  58. 

of  private  corporations,  52-55. 

repeal  of,  56. 

time  limited  for  organization,  58,  1150. 

construed  as  to  taking  land  in  public  use,  202. 

powers  in,  construed,  860,  1267. 

reservations  in,  construed.  1210b-1211a. 
of  East  St.  Louis,  construed,  1265. 
construed  as  to  stockholder's  liability,  2904.  2905,  29011 . 
contract  by,  55.  78.  81,  82,  1210a-1211a. 
subject  to  implied  conditions,  1434. 

limitations  as  to  charges,  2648,  2652. 
subject  to  law  as  to  unjust  discrimination,  2654. 
does  not  prevent  state  from  fixing  rates,  2723. 
stockholder's  liability  under,  unconstitutional,  2906. 
limitation  as. to  duration,  1172. 
renewal  of,  1172. 

CHECKS— See  BAGGAGE.    EVIDENCE. 
CHIEF  INSPECTOR  OF  GRAIN. 

appointment  and  qualification,  2756. 
duties  of,  2756. 

appointment  of  assistants,  2756. 
oath  and  bond  of,  2756. 
removal— vacancy,  2756. 
right  to  retain  fees,  2759. 
liability  on  bond,  2761-2763. 

See  INSPECTION  OF  GRAIN.    INSPECTOR  OP  GRAIN. 
CHILD. 

injuries  to,  1970, 1952,  2039,  2062,  2088. 
negligence,  1952,  1970, 1606,  2124. 
CIRCUIT  COURT. 

condemnation  in,  325. 
petition  to  for  incorporation,  1508. 
issue  of  warehouse  licenses,  /J737. 
filing  justice's  transcript  in,  1091. 
CITIES  AND  VILLAGES. 

subject  to  legislative  control,  57. 

act  for  incorporation  of,  18. 

charters  not  abrogated  by  new  constitution,  45. 

city  election  law,  valid,  31. 

apportioning  taxes  between  it  and  county,  188. 

of  the  powers  of. 

to  condemn  for  street,  325,  327,  340,  358,  364,  365,  525,  505,  526,  392. 

limitation  on  power,  342. 

not  for  a  city  prison,  343. 

to  condemn  for  a  sewer.  361. 

to  condemn  a  street-crossing  over  railroad,  150. 

to  condemn  for  a  boulevard,  348. 

cannot  confer  power  of  eminent  domain,  213,  346. 

as  to  streets.  117,  136. 

may  grant  right  to  use  of  street,  40. 

connecting  tracks  and  switches  in,  72,  73. 

railroad  tracks  in  street,  118. 

location,  grade  and  crossing  of,  117,  1258,  1280. 

control  over  tracks  in,  118-13(1,  1270,  1280. 

mode  of  assenting  to  track  in,  119. 

delegation  of  power  over,  void,  121,  123,  132,  1258,  1258a,  1262,  1262u. 

ordinance  granting  right,  135,  144. 

grant  of  privilege  in  street,  137,  1273. 
construed,  139,  140. 

alone  may  question  right,  138. 

may  bind  public  by  grant,  141,  1253,  1254,  1260. 

grant  of  use,  a  contract,  143. 

estoppel  to  dispute  right  to  street,  291 . 

consent  to  track  in  street,  necessary,  60,  1148,  1276. 
to  depot  and  track  in,  1513. 
not  necessary  except  as  to  etreets,  359. 

cannot  grant  exclusive  use  of,  1287,  1274: 

vacation  of  street,  140. 
powers  in  respect  to  railroads,  117-143,  145,  147, 150,  151, 1250. 


INDEX.  393 

CITIES  AND  VILLAGES— Continued. 
compel  fencing,  144,  1280. 
compel  the  making  street  crossings,  150,  1280. 
regulate  speed  of  tiains,  2152,  2185-2191. 
requiring  flagmen  at  crossings,  2450. 
to  allow  tracks  in,  1253. 
control  of  railway  in,  1270,  1273. 
limitation  on  city,  1271,  1272. 
regulate  use  of,  1280. 
change  of  location  and  crossings,  1280. 
laying  out  streets. 

extending  across  railway,  150. 
who  may  assess  damages  on  widening,  207. 
track  in  may  be  condemned.  231 . 
power  to  open,  extent  of,  358. 
special  assessment  f  or;  365 . 
chancery  will  not  enjoin,  392. 
judge  of  propriety  of,  393. 
sufficiency  of  petition.  402. 
provision  for  paying  damages,  301 . 
sole  judge  of  necessity  of,  375,  3a3. 
special  assessment  for,  360,  365. 
ordinance  notice  enough,  437. 
powers  over  streets,  846-848. 
when  fee  is  in  city,  847-849. 

liability  of. 

for  acts  done  in  street  by  its  consent,  1300. 

change  of  grade,  809,  810,  813-815,  818-820,  822,  824,  886,  1250. 

nuisance  in  street,  810,  885. 

defective  sewer,  811,  812,  817. 

drainage,  812. 

gutter  out  of  repair,  821 . 

throwing  water  on  lot,  810,  815. 

depriving  of  sidewalk,  816,  828. 

structures  in  street,  1300a,  826,  833-866. 

tunnel  in,  836,  837. 

water  tank  in,  838. 

viaduct  in,  839,  840. 

obstructing  access  to  lots,  237,  646,  677,  825,  830,  831,  834.  841,  842,  865,  866. 

excavation  in  street,  825,  829,  830,  908. 

railway  in  street,  827,  832-834,  846-W66. 

damages  to  adjacent  owners,  234,  235,  646. 

making  levee  of  street,  823. 

approach  to  bridge,  834,  835. 

for  defective  street  crossings,  2097a. 

for  injury  by  use  of  streets,  849-866. 

no  action  for  mere  public  injury,  843-845,  885. 
may  be  a  stockholder  and  vote  by  proxy,  llSOc. 

riyht  of  railway  to  enter. 

right  to  enter  and  acquire  right  of  way,  339,  1267-1269.  . 

power  to  condemn  not  derived  from  city,  213,  346. 

may  condemn  without  assent  of  city,  339,  346,  359. 

laws  giving  right  to  enter  city,  357. 

railway  exclusively  in,  1 146. 

legislative  recognition  of  the  right,  1259. 

location,  grade  and  crossing,  117. 

subject  to  assent  of  city,  118. 

may  select  route  without  its  assent,  118,  128-130,  1257,  1261,  1261a. 
power  of  city  to  regulate  location,  118,  120,  1258. 

no  limitation  till  used,  133. 
power  to  condemn  in  city,  339,  346. 
right  to  lay  road  in  city,  1259. 
power  to  locate,  power  of  city  no_  limitation,  1288. 
right  to  condemn  side  tracks  besides  those  in  streets,  355. 
riyht  of  railroad  to  lay  track  in  streets. 

power  to  build  through  city,  no  power  to  use  street,  344. 
right  to  lay  in  streets,  118-136,  344. 
ordinance  giving  assent,  121-123, 127,  131. 

enjoined  until  city  assents,  124. 
power  of  city  to  permit,  125,  137,  141,  864,  865,  1253. 
grant  by  resolution  and  deed,  126,  127. 
grant  of  use  with  others,  134,  135. 
city  alone  can  question  right,  138. 
grant  of  joint  use  with  public,  139. 
public  bound  by  grant,  141. 
conditions  of  grant,  a  binding  contract,  143 . 

-29 


394  INDEX. 


CITIES  AND  VILLAGES— Continued. 

when  may  be  enjoined,  846,  848,  850.  854-856,  858,  861,  882. 

grant  binds  the  public,  1354, 1255, 141. 

power  of  city  to  regulate,  1258. 

delegation  of  power,  1258, 1258a,  1262. 

may  cross  street  without  leave,  1261, 1261a. 

sufficiency  of  ordinance  for  leave,  1261b. 

limitation  of  right  to  use  street,  1262a. 

grant  of  use  construed,  139. 

ordinance  not  necessary,  359. 

when  the  fee  is  not  in  city,  1299. 

chancery  jurisdiction  to  control    1291. 

tracks  in— a  new  use  or  burden,  1289,  847,  848,  882. 

ejectment  by  city  for,  1260. 

power  to  use  streets  by  charter,  860. 

grant  passes  to  successor,  1256. 

location  and  construct  in  street  of  unincorporated  town,  290. 
limitatfon  of  power  to  grant  of  street  to  railway. 

petition  of  lot-owners  necessary,  151-156,  1286, 1263. 

railway  takes,  subject  to  action  by  lot-owner,  154,  846-866. 

liability  for  use  of,  867-882. 

limitation  of  right  to  grant  use,  1262a. 

conditions  in  lot-owner's  petition  binding,  1263a. 

grant  limited  by  petition,  151-161. 
liability  for  killing  stock  in,  1683,  1717. 
care  required  of  railroads  in,  1891. 
See  MUNICIPAL  CORPORATION,  RAILWAYS  AND  STREETS. 

CITY  CLERK— service  of  process  on,  1113. 

CLASSIFICATION. 

of  directors,  1175. 

of  freights,  part  of  schedule,  2722. 
CLERK  OF  CIRCUIT  COURT. 

notice  of  lien  with,  1088, 1090. 

to  give  notice  of  suit  for  lien,  1093. 
CLERK  OF  COUNTY  COURT. 

selection  of  jury,  468. 

issue  of  summons  and  publication,  432. 
CLERK  OF  RAILWAY. 

embezzlement  by,  169. 

service  of  process  on,  1099. 

COLLATERAL  PROCEEDING, 
errors  not  important  in,  362,  479. 
corporate  existence,  513,  1151. 
judgment,  in,  932,  940,  941,  1028-1032,  1034. 

COLLECTION — of  subscription,  how  enforced  by  creditors,  2829. 
COLLISION. 

necessary  to  liability  under  law  requiring  fencing,  1586-15P8. 

when  action  lies  without  any,  2153,  2154. 

from  not  observing  rules,  1321. 

COLORED  PERSON— discrimination  against,  1157ti,  1157s,  1331,  1332. 
COMBINATION. 

unlawful,  injury  to  railway,  172. 

for  a  strike;  2552. 

to  have  grain  delivered  contrary  to  order,  2775. 

COMBUSTIBLE  MATTER. 

on  right  of  way,  negligence,  1800-1806. 

See  GRASS  AND  WEEDS.    FIRE.    RIGIIT  OF  WAY. 

COMMISSIONERS, 
selection  of,  473-481. 
lixing  time  of  meeting,  479. 
order  appointing,  480. 
competency  and  qualification,  470,  484,  485. 
must  adjust  damages,  501-504. 
can  consider  no  other  issue,  507. 
qualification  —presumption,  1030. 
no  power  to  find  who  entitled  to  money,  1016. 

COMMISSIONERS  OF  HIGHWAYS. 

may  grant  the  use  of  highway,  1235, 1245,  1246,  1247. 
assessment  of  damages  oy,  284. 
condemnation  by  jury  of  six,  287. 
when  individually  liable,  879-881. 


INDEX.  395 

COMMITTEE  OF  APPEAL. 

appointment  and  removal,  2797. 
decision  final,  2798. 
oath,  bond  and  qualification,  2799. 
salary,  by  whom  fixed.  2799. 

paid  from  inspection  fund,  2799 

COMMON  CAERIER. 

limiting  the  liability  of,  2339-2442. 

how  far  may  be  by  contract,  2340,  2347-2349,  2352,  2419. 

by  contract  if  assented  to,  2368. 

construed  as  not  exempting  from  gross  negligence,  2371. 

contracts  for,  construed,  2412,  2440,  2441. 

limitation  goes  to  each  line  of  road,  2381. 

contracts  f5r,  not  prohibited,  2422-2424,  2428,  2429,  2431,  2432. 

may  not  as  to  gross  negligence  or  willful  misfeasance,  2340,  2347-2349,  2354,  2389, 

2391,  2392,  2409,  2417,  2419,  2426,  2428. 
nor  as  an  insurer,  2346. 


must  be  by  special  contract,  2350,  2433,  2435,  2438,  2439. 
presumption  of  agent's  authority  to  make,  2341. 
burden  of  proving  contract,  2345. 


what  risks  may  stipulate  against,  2346,  2354. 
limitation  of  LiahttUy. 

contract  limiting  from  certain  risks,  2356. 
as  to  what,  it  may  be  limited,  162,  2431. 

to  its  own  line,  2357-2362,  2374,  2376,  2377,  2384,  2387,  2389,  2475,  2433,  2435,  2413, 
2416 

amount  of  liability.  2364,  2370,  2440. 

to  prevent  fraud— disclosure  of  value,  2373. 

as  to  time  and  mode  of  making  claim,  2415. 

as  to  amount  of  damages,  2424,  2432,  2440. 

as  to  loss  by  fire,  2439,  2441. 
statute  construed,  2425. 

does  not  prohibit  contracts  for,  2429. 
restriction  by  notice,  2341a,  2344,  2346,  2357,  2390. 

by  custom,  2426. 

notice,,  as  to  what  good,  2373,  2390,  2427. 
presumption  as  to  shipper's  assent,  2344,  2345a. 
receipt  with  restrictions  must  be  assented  to,  2351-2353. 

when  a  contract,  2360,  2362-2364,  2396,  2398-2400. 

assent  to,— a  question  of  fact,  2358,  2360,  2363,  2364,  2367,  2369,  2378,  2393,  2397. 
by  receipt,  2358,  2369,  2388,  2399-2405,  2410,  2435. 
restriction  must  be  agreed  to,  2399-2405,  2408,  2409,  2420,  2421,  2427,  2429a,  2430, 

2434,  2435. 

burden  of  proof  to  show  limitation,  2380,  2434. 
presumption  as  to  assent,  2399. 

settling  other  losses  as  evidence  of  no  exemption  2372. 
limiting  by  receipt  afterward,  given,  2402,  2407. 
may  limit  common  law  liability,  2375,  2385,  2423,  2431,  2428. 
by  conditions  in  free  pass,  2347. 
lex  loci  governs,  2379,  2406,  2437. 
liability  extends  to  place  of  delivery,  2382,  2384. 
liable  for  loss  of  car,  2442. 

from  liability  for  passenger  on  freight  train,  2386. 
cannot  relieve  itself,  except  by  legislation,  2414,  2479. 
special  carrier  may  restrict,  2345a. 
cannot  relieve  itself  by  contracts  with  others,  2479. 

who  are  common  carriers. 

a  railway  company,  68. 

railway  transferring  only  in  cities,  1146. 

sleeping  car  not  liable  for  baggage,  2261. 

regulation  of  charges  of,  78. 

duty  to  weigh  and  measure  grain,  106,  2599. 

criminal  liability  for  gross  negligence,  166. 

cruelty  to  animals,  168. 
lien  of,  168. 

liability  for  injury  from  defective  approaches,  2097a. 
liability  for  baggage,  2239-2241. 
when  liable  as  warehouseman,  2257,  2258. 
duty  as  to  receiving  and  carrying  grain,  2562-2580. 
must  carry  in  order  of  application,  2581. 
discrimination  as  to  passengers  or  freight,  2581. 
cannot  excuse  itself  by  any  act  of  its  own,  2582. 
crowded  condition  of  connecting  line,  no  excuse  for  delay,  2583. 
military  control,  as  an  excuse  for  delay,  2580,  2585,  2592,  ^598. 

but  may  be  for  refusing  goods,  2580,  2589,  2592,  2593. 
mobs  and  strikes  as  an  excuse  for  delay,  2586,  2587,  2594. 
action  lies  for  delay,  2595. 


396  INDEX. 


COMMON  CARRIER— Continued. 
measure  of  damages  for  delay,  2584. 
negligence  in  forwarding,  2588. 
case  excusing  delay,  2589. 

liability  for  refusing  to  receive  and  transport,  2590. 
unconstitutional  law,  no  excuse,  2591. 
what  will  excuse  a  loss.  2596. 
custom  as  bearing  on  liability,  2597. 
place  it  must  receive  grain,  2600. 
place  of  delivery  by,  2602-2608,  107,  2600. 
side  track  to  warehouse,  part  of  its  line,  2604,  2609. 
when  may  refuse  grain  in  bulk,  2607. 

when  elevator  is  not  on  its  line,  2608. 
when  to  deliver  in  bulk,  2608-2621. 
conversion  of  grain  by,  2774. 
neglect  of  shipper  to  unload,  2589. 

scales  and  weighing  grain— penalty,  2599,  2730,  2731,  2728. 
to  receipt  for  grain  weighed,  2599,  2758. 
transportation  in  bulk,  2600. 

penalty  and  action  for  damages,  2600. 
to  give  weight  in  receipt,  2728 
duty  to  take  grain  at  warehouse,  2601. 
when,  compelled  to  allow  connections,  2611-2613. 
grain  must  be  in  bulk  to  give  action,  2614. 
delivery  on  notice  of  change  of  place,  2622 . 

liability  for  not  delivering  as  directed,  2622. 
time  for  unloading  after  notice,  2623. 

facilities  for  unloading,  2623,  2728. 
change  of  consignment  and  its  effect,  2623. 
receiving  and  delivery  at  junctions,  etc.,  2624. 
liability  for  not  weighing,  etc.,  2730,  2731 . 

for  storing  contrary  to  notice,  2774. 
preventing  access  to  scales— penalty,  281 
not  bound  to  use  the  track  of  another,  108'  109. 
use  of  track  without  license,  109. 

COMMON  LAW. 

liability  for  injury  to  stock,  1595,  1714,  1716. 
remedy  against  warehouseman,  2794. 
prohibits  extortion,  2651. 

unjust  discrimination,  2668-2670. 

COMMUTATION  TICKETS— not  prohibited,  2706. 
COMPANY— when  word  includes  natural  persons,  158, 1272. 
COMPARATIVE  NEGLIGENCE.    See  NEGUQENCB  . 

COMPENSATION. 

necessary  to  be  made,  191,  208,  179, 182-185,  214. 

for  %  new  use  of  land,  232. 

for  a  new  duty  on  burden,  149,  239,  269,  351,  847,  882,  848,  1296. 

for  crossing  right  of  way,  257,  264-267,  271,  273,  274,  277,  654-580. 

for  leasehold  property,  272,  275. 

for  easement  taken,  276. 

for  telegraph  in  highway,  351. 

for  land  for  highway,  501-504. 

for  that  which  injures,  885. 

state  must  compensate,  898. 

for  property  taken  on  river,  898. 

materials  for  road,  1214. 

taken  by  contractors,  1215. 
for  trees  cut  near  road.  1231. 
ground  for  a  crossing,  1304. 
taking  or  damaging  private  property,  303. 
to  be  found  by  a  jury,  91,  204,  214,  215,  278-288. 
finding,— a  judicial  act,  206. 

by  board,  207. 
by  impartial  agency,  204. 
in  benefits,  194.    See  BENEFITS. 
making  provision  for,  202. 
when  to  be  paid,  185,  189,  190,  197.  201.  963-986. 
payment  necessary  to  justify  taking,  924,  933,  935,  962-965. 
under  constitution  of  1848,  212. 
must  be  in  money,  210,  592,  613,  631,  645,  715. 
recovery  of,  by  action  at  law,  808. 
to  whom  paid,  1019,  1020. 

attaching  creditor,  1010,  1012. 

mortgagee,  1015. 

tenant,  1017,  1018,  1020. 


INDEX.  397 


COMPEN  SATION— Continued. 

party  in  interest,  1020. 
materials  for  elevated  ways,  2944. 
necessary  to  depriving  of  corporate  rights,  1431 . 
inability  to  agree  on,  325,  403,  404,  1213,  1214. 
when  to  be  paid,  185,  189,  190,  197. 

COMPENSATION  OF  OFFICERS, 
of  directors,  &c.,  1177-11781). 
none,  unless  fixed  before  services,  1177. 
for  services  not  incident  to  office  I178-1178b. 
of  railroad  commissioners,  2628. 
of  secretary  of,  2628. 
of  state's  attorney,  2643. 
of  inspector  of  grain,  2756. 
of  committee  on  appeals,  2799. 
of  weighmaster,  2809. 

COMPETING  LINES. 

grant,  does  not  prevent  grant  to  another  road,  259. 

rifht  to  enjoin  building  of,  260,  261. 

consolidation  of,  67, 1411. 

points,  2706. 

discrimination  between,  2689-2695,  2706. 
COMPETENCY. 

of  juror,  470,  484,485. 

of  witness,  753,  756. 

CONDEMNATION. 

bu  cities  and  villages. 

for  a  street  over  a  railroad,  150. 

for  a  street,  327,  340,  358,  364,  365,  392,  505,  525,  526. 

for  city  prison,  343. 

for  boulevard,  348. 

for  sewer,  361. 
what  bodies  may,  325,  327. 
who  may— and  for  what  uses,  327. 

ft.V  railway  corporations. 

not  until  its  route  approved,  181. 

under  law  of  1849,  334. 

under  law  of  1852,  335. 

consolidated  company,  345. 

power,  and  for  what  purposes,  1213,  1512. 

for  connections  and  crossings.  256d,  256e. 

for  crossing  over  another  road,  264,  276,  520. 

of  additional  crossings,  265-267,  273. 

of  crossing— right  to  select  place,  277. 

for  crossing  of  another  road  in  street,  701. 

for  materials  for  road,  1214. 

for  landing  on  river,  1489. 

for  union  depots,  1511,  1512. 

by  <le  facto  corporation,  362,  512. 

ot  prior  right  of  way,  403. 
for  conjoint  use,  .403. 

of  the  line  of  another  road,  256-256e,  10&3. 

property  in  public  use,  256-268,  1306. 
when  the  use  is  different,  263. 

easement  in  street  protected,  268-271,  276. 
new  burdens  on,  269, 270. 

leasehold  Interest,  276. 

only  for  a  public  use,  289-302. 

right  to  condemn  in  city,  339. 

power  to  take  public  property,  341 . 

power  not  exhausted  by  one  exercise,  336,  349,  350, 

for  workshops,  337. 

for  paint  shops,  &c.,  338. 

for  side  tracks  used  by  consent,  350. 

precedent  steps  to  invest  with  power,  347. 

for  lateral  or  nranch  road,  363. 

fraudulent    of  another  road,_  1033. 

lands  of  municipal  corporation,  1512. 
by  telegraph  company,  351. 
of  the  necessity  for,  384. 

grounds  of,  immaterial,  267. 

not  for  mere  convenience,  297. 

necessity,  expediency  and  propriety,  373-394. 

of  how  much  land,  1231-1233. 
when  necessary  to  abate  nuisance,  812,  817. 


398  INDEX. 

CONDEMNATION— Cfmtinued. 

for  a  new  burden,  882,  232,  241,  239. 
for  act  working  a  legal  injury,  886. 
right  of  lot-owner  to  insist  on,  853,  861. 
mandamus  to  compel,  996. 
of  the  jrroceeding  to  condemn, 

a  judicial  act,  206,  209,  326. 

by  what  law  governed,  309-311 . 

election  ae  to  what  law,  312. 

under  two  acts,  312,  313. 

under  act  of  1852,  after  new  constitution,  314. 

strict  compliance  required.  319,  321-323, 

power  derived  from  state  alone,  346. 

after  new  constitution,  481. 

in  what  courts,  399. 

courts  always  open  for,  433-435. 

courts  have  no  equity  jurisdiction,  400. 

petition  for,  325,  335,  389,  402-418. 

its  sufficiency,  401. 

to  condemn  tor  sewer,  361. 

after  passage  of  ordinance,  361. 

must  describe  land,  395,  403,  454. 

facts  showing  jurisdiction,  396-398. 

presentation,  402-418. 

in  what  name  filed,  402. 

to  show  inability  to  agree,  403,  404,  410,  414. 

to  condemn  part  of  another  road,  403. 

time  for  presenting,  405. 

need  not  describe  land  not  sought,  406. 

as  to  damages  have  sustained,  407. 

to  condemn  for  street,  408. 

sufficiency  of  description  of  land,  0 

requisites  of,  325,  411. 

statement  of  the  uses,  412,  416. 

as  showing  a  public  use,  413. 

as  to  width  of  right  of  way,  415. 

defects  in,  how  reached,  417. 

as  showing  manner  of  use,  418. 

no  answer  or  pleas  to,  419^122. 

in  vacation,  fixing  time  of  hearing,  432. 

embracing  several  tracts,  454. 
•         amendments,  455. 

right  to  dismiss,  459. 

as  to  several  ownership,  460. 

for  railway  crossing,  277. 

filing— not  a  taking.  240. 

of  the  necessary  parties,  272.  276. 

notice  of  proceeding,  186,  436-452. 

not  necessary  if  parties  appear,  439-452. 

when  record  must  show.  440. 

trial  by  jury.  207-211,  278-288. 

divesting  title  by,  192. 

final  judgment  necessary,  205. 

validity,  not  dependent  on  payment,  190,  964,  965. 

without  making  provision  to  pay,  202. 

payment  necessary  to  pass  rights  under,  208,  212,  924,  933,  935,  937,  983,  962.  9(>3. 

of  several  tracts  separately,  460,  461. 

covers  past  and  future  damages,  921-923. 

non-payment  does  not  invalidate,  983. 

city  estopped  to  deny  validity  of,  955. 

binding  force,  collaterally,  1028. 

value  to  be  first  found  and  paid,  1214. 

when  it  passes  title,  1047. 

abandonment  before  payment,  1024. 
condemnation  money. 

to  whom  paid— judgment  creditor,  1010,  1013-1020. 

judgment,  as  to  party  entitled  to,  1011,  1012, 1016,  1019. 

payment  to  county  treasurer,  1014,  1016,  1069. 

disposition  of  on  appeal,  1062. 

payment,  how  enforced,  954,  959. 

paying  mortgage  out  of,  1013. 

payment  before  right  to  possession,  1035,  282. 
when  tracts  to  be  assessed  separately,  454,  460,  461,  533,  535,  540. 
finding  separately  as  to  damages,  533,  535,  539,  540. 

CONDITION. 

in  grant  of  use  of  street,  binding,  143,  1263,  359. 
in  petition  of  lot-owners,  bind  city,  159. 


INDEX.  399 

CONDITION— Continued. 

steps  to  condemn,  are  precedent,  321. 

when  consent  of  city  is  not  a  condition  precedent,  346. 

evidence  of,— of  land  sought,  717. 

in  sale  of  rolling  stock,  1493. 
CONDITIONAL  SALE. 

reserving  a  lien,  1493. 

contract,  how  executed,  1494. 

acknowledgment  and  recording,  1494,  1495. 

title  not  to  pass  before  payment,  1493. 

limited  to  sale  of  rolling  stock,  1497. 

notice  to  creditors,  1498. 

CONDITIONAL  JUDGMENT.     See  JUDGMENT. 
CONDUCTOR. 

service  of  process  on,  1099, 

station  agent's  certificate,  evidence  to,  1157k. 

subject  to  same  fine  as  corporation,  2117a,  2120. 

giving  lay-over  ticket,  2318. 

giving  passenger  a  check,  2319. 

to  wear  badge,  2338. 

right  to  demand  fare  or  ticket,  2338. 

police  powers  of,  2549a. 

expulsion  of  passengers,  for,,  what,  2550. 
See  PASSENGERS. 

arrest  of  passengers,  2551. 
CONFLICT  OF  LAWS. 

what  governs,  change  pending  proceeding,  309. 

which  of  two  laws  govern,  315-318. 

CONFUSION  OF  GRAIN. 

rights  of  several  owners,  2952,  2966,  2967. 
average  of  loss,  2951,  2966,  2967,  2976. 
right  to  replevy  after,  2953. 

CONNECTING  ROADS  AND  LINES, 
incorporation  of,  1146. 
lines,  1315. 

liability  for  delivery  over,  1480. 
crowded  condition  of,  no  excuse  for  delay,  2583. 
negligence  in  forwarding  by,  2588. 
what  are,  in  law,  2604,  2608-2610. 
removal  of  side  tracks,  enjoined,  2620. 

CONNECTIONS  BETWEEN  RAILROADS, 
of  tracks  in  city,  are  public,  72.  73,  1275,  1314. 
with  elevators,  warehouses,  107,  110,  569,  1273. 
by  tracks  in  streets,  137. 

city  control  over,  137. 
at  crossings— right  to,  256e-257. 

duty  to  give  facilities  for,  1304. 
compelled,  1275. 

power  to  unite  with  other  roads,  1224, 1304. 
removing  connecting  tracks  enjoined,  1308,  2620 . 
duty  of  roads  to  permit,  1304,  1808,  2611-2613. 
right  at  common  law,  to  form,  1309. 
contract  of,  1313,  1404. 

with  warehouseman— rights  of  his  lessee,  1310,  1311. 
physical  or  for  business,  1315. 
'charter  power  to  make  contracts  for,  1403. 
right  of— with  another  road,  1485. 
with  bridge  tracks,  1487. 
power  to  contract  for,  1484. 
what  are,  under  the  law,  3604,  2608-2610. 
when  compelled  to  allow,  2611-2613. 

CONNECTION  OF  NEGLECT  WITH  INJURY, 
neglect  to  fence.  1591,  1592,  lt>06,  1672,  1673,  1681. 

neglect  to  sound  bell,  1830-1839,  1850-1856,  1858-1862,  186-1,  1866-1871,  1!)29,  1956. 
burden  of  proof,  1838.  1839. 
prima  facie  case,  1849,  1857,  1860-1864. 
See  CAUSE  OF  INJURY.     NEGLIGENCE. 
CONSENT. 

of  city  to  railway  in  city.    See  CITIES  AND  VILLAGES. 

to  railway  in  street,  60,  118-136,  157,  159-161,  359,  346,  1235. 
when  not  necessary,  129,  160,  359. 
to  use  of  streets,  1270. 
to  depot  and  tracks  in,  1513. 

of  lot-owners  to  railway  in  street,  151-156,  1263,  1265a,  1266,  1271,  1272,  1286. 
of  bondholders  to  consolidation,  1407. 


400  INDEX. 

CONSENT— Continued. 

of  stockholders  to  consolidation,  1411. 

of  owner,  to  mixing  grain,  104. 

to  occupation  of  land  before  condemnation,  350. 

to  structure  on  land,  630. 

to  railway  in  highway.  1278. 

to  dismissal  of  suits.  2719. 

of  shipper  to  limitation.    See  ASSENT.    CARRIER. 

CONSERVATOR— a  party  to  condemnation,  325. 

CONSIGNMENT  OF  GRAIN, 
right  to  change.  2622,  2623. 
notice  of — penalty,  2622. 
effect  of  change,  2623. 

notice  to  consignee  of  arrival  of  grain,  2623. 
time  for  unloading,  2623,  2774. 
right  to  receive  in  cars,  before  delivery  to  warehouse,  2774. 

CONSOLIDATION  OF  RAILROADS, 
limitation  on  right,  67,  1386. 
of  parallel  and  competing  lines,  67.  1412,  1422. 
publication  of  notice  before,  67,  1386. 
between  domestic  and  foreign,  1388,  1417,  1422,  1413. 

approval  of  stockholders,  1422. 

notice  of  meeting,  1422. 

majority  of  directors  to  be  citizens,  1422. 
of  roads  of  several  states,  1418. 

domicile  in  each  state,  1419. 

effect  on  constituents,  1420,  1421. 
new  company  succeeds  to  oowers,  rights  and  duties  of  constituents,  1417,  1387, 1421a. 

power  to  condemn,  345. 

right  to  municipal  subscription,  1387, 1416. 

in  what  name  sued,  1395, 1397. 

succeeds  to  all  rights  of  constiuents,  1397,  1405,  1405a. 

rights  of.  1397,  1399,  1405,  1405a. 

liability  tor  taxation  on  capital  stock,  1400. 

remedy  for  debts  of  constituents,  1401. 

limitation  on  right  to  change  location,  1422. 
when  to  take  effect,  1424. 
filing  and  recording  articles  of,  1424. 
evidence  of,  1394,  1424. 

effect  of,  on  powers  and  duties,  1389, 1395-1397. 
defects  in,  cured  by  subsequent  legislation,  1390. 
legislative  ratification  of,  1402. 
contract,  whether  for,  or  for  connections,  1404. 
purchaser  of  bonds,  takes  subject  to,  1407. 
when  directors  estopped  from  denying,  1408. 
contracts  for,  liberally  construed,  1410. 
consent  of  stockholders  to,  1411,  1422. 
powers  as  to,  construed,  1403. 
when  enjoined,  1411. 
new  company  to  keep  office  in  state,  1425. 

mortgage  of —effect  on  property  of  old,  1350. 

right  to  dispute  mortgage,  1349. 

liable  for  debts  of  constituents,  1391,  1406. 

liable  to  perform  duties  of  constituents,  1393. 

subject  to  same  state  control,  1413. 
effect  on  constituents,  1389. 

debts  of,  not  impaired,  1425. 

on  prior  duties  and  liabilities,  1395-1397. 

whether  a  dissolution  of,  1409. 

with  a  foreign  company. 
state  control  1413. 
rights  of  state  protected,  1491 . 
when  a  domestic  one,  1400. 

CONSOLIDATION— of  warehouse  receipts,  2743. 
CONSPIRACY— to  obstruct  business  of  railway,  172,  2554. 

CONSTITUTIONALITY., 
of  fencing  law,  1519-1525. 
not  ex  post  facto,  1519. 
as  to  existing  corporations,  1520. 
act  of  1874  valid,  1521. 
no  deprivation  of  rights,  1522. 
imposition  of  fines  and  penalties,  1522. 
matter  of  legislative  discretion,  1523. 
a  proper  police  regulation,  1524. 
attorneys  fee,  in  nature  of  a  penalty,  1525. 


INDEX.  401 


CONSTITUTIONALITY-ContiJiued. 

exempting  road  from  giving  signals,  1839. 

Texas  cattle  law,  2149-2151. 

ordinance  regulating  speed  in  city,  2155,  2156. 

stopping  at  county  seats,  3224. 

See  also,  78,  79,  80,  81,  85,  86,  12,  15,  17,  36,  38,  41,  18,  19-31,  96,  100-102. 

CONSTITUTION  OP  1848. 

governs  as  to  rights  acquired  under  it,  1. 

special  and  local  laws  allowed,  29. 

as  to  township  organization,  construed,  37. 

corporators  means  shareholders,  49. 

special  charters,  1149c. 

trial  by  jury  in  condemnation  not  necessary,  278,  279. 

gave  no  damages  for  laying  railroad  in  street,  799,  800. 

imposition  of  liability  on  stockholders,  I)i:l0b-1211a. 

CONSTITUTION  OF  1870. 
acts  prospectively,  2. 
preserves  existing  rights,  2. 
special  legislation  prohibited,  3,  46. 
no  repeal  of  general  laws  of  corporations,  48. 
repeal  of  charters,  for  neglect  to  organize,  58. 
mode  of  electing  directors,  59. 
street  railways — assent  of  cities,  60. 
railways  to  keep  office  in  state,  61. 

inspection  of  books— reports,  61. 
when  eminent  domain  article  took  effect,  92- 

how  far  a  repeal  of  act  of  1852,  92. 
makes  rolling  stock,  personal  property,  62-66. 
limitation  on  consolidation  of  railroads,  67. 
making  railways  public  highways,  68-74. 
fixing  maximum  rates  of  charges,  68,  75-86. 
regulations  of  use  of  railroads,  68. 
limitation  on  issue  of  bonds,  &c.,  87. 
eminent  domain  applied  to  railways,  91. 
laws  to  prevent  extortion,  94. 
confers  legislative  power,  304. 

does  not  confer  power  of  eminent  domain,  219,  256. 
repeal  of  former  laws,  217,  283,  314,  324. 
effect  on  prior  rights  and  proceedings,  218. 
limitation  on  power  of  the  state,  220. 
constitutional  right  to  appeal,  1054. 
effect  on  law 'of,  1849,  1147. 
CONSTRUCTION. 

of  constitutidn  of  1870,  111,  801,  804,  807. 

of  charters,  as  to  power  to  condemn,  262. 

of  statutes,  305,  306.  319,  321,  323,  46V. 

when  strict,  prevails  321-323,  328,  2146,  2147,  3115,  2116. 

of  penal  statute,  2616,  2715,  2716. 

law  against  unjust  discrimination,  2666-2705,  2707-2709. 

of  deed  for  right  of  way,  797,  798. 

of  road— plans,  specifications,  etc.,  728,  730. 

of  culverts,  so  as  not  to  injure,  872. 

of  cattle  guards,  not  allowed  by  owner,  602. 

CONTEMPT— punishment  of  witnesses  for,  2639. 
CONTIGUOUS  PROPERTY— injury  to.    See  DAMAUEB. 
CONTINGENCY— law  depending  on,  not  special,  31. 
CONTINUANCE. 

when  service  is  not  in  time,  449. 

of  condemnation  by  justice,  451. 

CONTRACT 

a  charter  is,  55, 78,  81,  82,  1210a-1211a. 
grant  of  use  of  street  is,  143. 

impairing  obligation.  23U,  243,  244,  1310,  1210a-1211a,  1441,  1519-1531. 
kind  that  gives  a  lien,  1077. 
special  -waiver  of  lien,  1080. 
directors  adverse  interest  in,  1176a. 
power  of  charter  directors  to  make,  1179. 
to  release  damages,— a  bar,  1238. 
for  connection  of  roads,  when  personal,  1310. 
as  to  crossings,  265.  266,  373. 
for  connection — not  consolidation,  1404. 
authority  of  railway  to  make,  1403. 
to  consolidate,  liberally  construed,  1410. 
for  reduced  rates,  binding,  1460,  1461 . 
of  informal  corporations,  made  good,  1463. 
ultra  virw— estoppel,  when,  1385. 
—29 


402  INDEX. 

CONTRACT— Continued. 

evidence  0}  acceptance  by  new  corporation,  1463. 
law  applies  only  to  railways,  adopting,  1464. 
to  carry  coal  at  reduced  rates,  1464. 
for  leasing  roads  of  other  states,  1476. 
for  operating  other  roads,  1476. 
for  lands  for  depot,  1476. 
for  purchase  of  lands  needed,  1476. 
of  horse  railways,  1477. 
sale  of  tickets  over  other  lines,  1479,  1480. 
joint  for  operating  roads,  1484,  1484a. 
power  to  make,  1484b. 
to  stop  trains  at  places,  1484c. 
conditional  for  rolling  stock,  1493. 
for  connections,  1485. 
•  like  those  of  natural  persons,  1484b. 
of  owner  to  fence  track,  1721,  1724, 1725  1727. 
limiting  carrier's  liability.    See  COMMON  CAUKIEUS. 
of  carrier,  no  release  of  duty.  2582. 
for  rebate  on  fare,  void,  2680. 
for  delivery  of  grain,  contrary  to  orders,  2775. 

CONTRACTORS. 

corporation  liable  for  their  acts,  121<>-1219a,  1481,  2458-2460,  2465,  2466,  2468. 
road  in  hands  of — no  excuse  for  not  fencing,  1545. 
included  in  the  word  corporation,  2457. 
liability  of  private  owner,  for  acts  of,  3463. 
takintr  posts  for  road,  2465. 
railway  not  liable  to  servant  of,  2467. 
taking  materials,  182,  1215. 
reserving  money  to  protect  against  lien,  1086. 
CONTRIBUTION. 

between  stockholders,  2912-2914. 
in  equity  only,  2914. 

CONTRIBUTORY  NEGLIGENCE.    See  NEGLIGENCE. 
CONVENIENCE— not  enough  for  condemnation,  297,  376,  384. 
CONVERSION. 

of  grain  by  carrier,  2774. 

of  grain  by  warehouseman,  2988. 
COPY. 

of  contract  to  be  served  in  lien  case,  1087, 1089, 1090.  • 

service  of  process  by,  1099,  1116,  1118, 1119. 

of  articles  of  incorporation,  evidence,  1155. 

of  by-laws,  recording,  1173. 

CORONER — railway  to  pay  expenses  of  inquest,  2950. 
CORPORATE  EXISTENCE. 

when  brought  into  existence,  1155. 

when  complete,  1156,  1156f . 

who  may  question,  11561. 

when  a  de  facto,  1147. 

uses  under  general  law,  1169. 

evidence  and  proof  of,  512-516.  528,  529. 

evidence  of,  as  to  consolidated  company,  1394,  1424 . 

proof  of  by  admission,  1170. 

not  until  all  the  stock  is  taken,  1198. 

estoppel  to  deny,  2897-2900. 

de  facto  and  wser,  when  sufficient,  3899. 

when  it  ceases,  1462. 

See  CORPORATION.  INCORPORATION  . 

CORPORATE  PROPERTY— how  far  private,  255,  256. 
CORPORATIONS. 

special  legislation,  3,  46. 

general  laws  for,  42,  46. 

curing  defects  in  organization,  47. 

subject  to  police  power,  50-53. 

reservation  in  charters,  54. 

charter,  a  contract,  55,  78.  81,  82,  1210a-1211a. 
repeal  of,  54,  56. 

limitation  as  to  lime  for  organizing,  58. 

election  of  directors,  59,  1187. 

regulation  of  charges,  78. 

property.  &c.,  of,  subject  to  eminent  domain,  91,  215,  242-256e. 

discovery  by,  114. 

answer  by,  "115. 

delegation  of  power  to.  300,  379,  380. 

powers  granted— a  judicial  question,  300. 


INDEX.  403 


CORPORATIONS— Continued. 

to  enforce  eminent  domain.  333. 
de  jure  and  de  facto,  528,  529, 1147,  1151. 
must  not  injure  another.  872. 
notice  of  lien  to,  1087-1089. 
service  of  process  on,  1099-1122. 
corporate  acts,  362. 
evidence  of,  1166. 
in  what  county  sued,  1097. 
municipal— legislative  control,  57. 
suits  in  corporate  name.  402. 
formation  under  general  law,  differs  from,  under  charter,  115(if . 

substantial  compliance  necessary,  ll.Mili. 

under  laws  of  two  states,  1187a. 
what  constitutes.  1156-11561. 
when  incorporation  complete,  1156. 
recording  articles  necessary,  1156-ll"if>a. 
must  comply  with  the  Iaw,"ll56a-115i>e. 
fire  insurance,  1156d,  1156e. 

when  subscription  of  capital  stock  necessary,  115*;;;. 
loan  or  use  of  corporate  funds,  1200. 
subject  to  legislative  control,  1428-144"). 
legislation  held  as  creating  one,  1466. 
union  depots,  1507-1517. 
defined  in  statute,  2457,  49,  2725. 
defunct,  remedy  of  creditors,  2832. 
liability  of  managing  officers,  2919-29'?5 
liability  for  refusing  to  transfer  stock,  1-202. 
right  to  purchase  its  stock.  1203. 
liability  of  stockholders,  2812-2903. 
See  IncoRPOKATioNs . 
COSTS. 

of  bridge  made  necessary,  555. 

of  removal  of  place  of  business,  fi92. 

expenses  of  assessing  damages,  1035. 

when  county  liable  for,  1044. 

limiting  witnesses,  942. 

attorney's  fees  as,  1092,  1794-1799,  1'iiK.  irns.  2599,  2600  2714 

retaxing,  1004. 

on  appeal  against  county,  1044, 105-3. 

in  favor  of  trie  people,  2110. 

COUNTY. 

under  township  system,  19,  36,  37. 

no  control  over  streets,  138, 147,  12^0. 

apportioning  taxes  between  and  city,  IKS. 

consent  to  telegraph  in  roads,  351.  " 

judge  of  expediency  of  road,  374. 

mnj  abandon  laying  of  road,  497,  4!)«. 

liable  for  costs,  1044. 

service  of  process  on,  1108. 

suit  by  for  fines,  2724,  2811.  1475. 

in  what,  action  lies  against  railway,  1007-1143.1). 

in  what,  offender  on  train  may  be 'tried,  178. 

COUNTY  COURT. 

condemnation  in,  325. 

no  equity  jurisdiction,  400. 

COUNTY  CLERK— service  on,  llOtv 

COUNTY  JUDGE— when  to  appoint  commissioners,  397,  473. 

COUNTY  SEAT. 

duty  of  passenger  trains  to  stop  at,  2204,  2224,  2225,  2228,  1150. 
See  RAILWAYS. 

COUNTY  TREASURY. 

payment  of  fines  to,  2724,  1475,  2811 . 

paying  condemnation  money  into,  1014,  1016,  1019,  1069. 

COUPLINGS  FOR  CARS  -injury  to  brakemen  from  dnfoctive,  3441-2449. 

COUPONS— cancellation,  embezzlement,  170. 

COURT. 

must  decide  whether  use  is  public,  299,  301 . 

necessity  or  propriety  of  condemnation  not  for  the  court,  385,  388,  37.">,  394. 

may  correct  abuse  of  power,  387,  390. 

alvyays  open  for  condemnation,  433,  435. 

evidence  of  corporate  existence,  is  to,  515. 

payment  of  condemnation  money  into,  1019. 


404  INDEX. 


CREDITORS  OF  CORPORATIONS. 

remedies  of,  2812-2820. 

release  of  subscription  as  against,  1195,  1196,  2812. 

may  act  through  a  receiver,  2818. 

having  notice  of  stockholder's  defense,  2819,  2820. 

bill  against  stockholders,  12o3a,  2828. 

bill  to  enforce  payment  of  stock,  2830. 
of  parties  to,  2831. 
sufficiency  of,  2887. 

equitable  lien  on  stock,  1204. 

of  assignor  of  stock,  1201  d. 
CRIME. 

on  train  or  boat — arrest,  2551. 

false  and  fraudulent  warehouse  receipts,  2793. 

CRIMINAL  LIABILITY, 
of  engineer,  2102. 
of  negligence,  166, 167. 
of  warehouseman,  2776. 

CROPS— injury  to,  from  neglect  to  fence,  1589. 

CROSSINGS  OF  HIGHWAYS  AND  STREETS, 
no  fencing  required  at,  1518. 
duty  to  maintain,  1518. 
death  at— comparative  negligence,  2097. 
bridge  over  highway,  2097a. 
of  streets,  duty  as  to,  2089,  2097a. 

duty  on  successor,  2092. 

change  of— injunction,  2090,  2093. 

notice  of  perils  at,  2095. 

new  street,  2096, 149. 

city  liable  for  defects,  2097a. 

power  over  grade,  &c.,  117. 

power  of  city  to  compel  making,  144. 

flagmen  at,  145,  1280. 

no  leave  necessary,  1261, 1261a. 

city  may  change,  1280. 

selection  of  the  place,  1225. 

points  and  manner,  how  fixed,  1307. 

CROSSINGS  OF  RAILROAD  OVER  RAILWAY, 
right  to  condemn,  264,  257,  259,  260,  261,  1304. 
right  to  additional,  265-267,  273. 
crossing  is  a  taking,  271,  231 . 
for  what  uses,  256e. 
damages  for,  261,  273,  554-580. 
inability  to  agree  as  to  the  place  of,  264. 
who  may  select  place  of,  277. 
cost  of  keeping  road  crossed  in  repair,  555. 
through  embankment— bridge  necessary,  55."» 
evidence  affecting  damages,  556-559. 
stopping  train— no  element  of  damage,  565 
on  grade,  570.571,  575,  578,  579. 

keeping  frogs  in  order,  571-574. 

stipulation  as  to,  binding,  571-575,  579,  580. 
under  grade,  575. 

covenant  to  make  and  keep  in  repair,  759. 
receiving  and  delivering  grain  at,  2624. 
of  stream,  duty  to  restore  to  former  usefulness,  2094. 

CROSSING-FARM.    See  FARM  CROSSING. 
CROSS  PETITION. 

demurrer  to  reach  defects  in,  523,  782. 

right  to  dismiss  after  filing,  459. 

order  of  evidence,  525,  777. 

when  necessary,  769-782,  777. 

when  not  necessary,  775,  776,  779. 

evidence  under,  780. 

sufficiency  to  give  jurisdiction,  778. 

new  parties  by,  1036. 

CROSS- WAY,  264,  271,  277. 

CRUELTY  TO  ANIMALS— by  carrier,  168. 

CULVERTS. 

power  of  cities  to  require  railroads  to  make,  145. 
duty  of  railway  to  make.  867,  1235. 
must  use  ordinary  skill  in  construction,  1236a-1236c. 
whose  duty  to  repair,  2636. 


INDEX.  405 

COMULATIVE  REMEDt. 

as  to  fraudulent  and  false  warehouse  receipts,  111. 

eminent  domain  law,  1071 . 

for  killing  stock  for  want  of  fence,  1612. 

in  respect  to  warehouses,  2724. 

CUMULATIVE  VOTING— election  of  directors  by,  59,  1459. 

CURATIVE  LEGISLATION;  47. 
CURING  DEFECTS. 

in  incorporating,  1463-1466. 
errors,  736. 

errors  by  verdict,  1569,  1701. 
CUSTOM. 

limiting  carrier's  liability,  2426,  2597. 
as  to  place  receiving  grain,  2601. 
to  deliver  grain  at  elevator,  2606. 
to  permit  connections— proof  of,  2612. 

DAMAGES. 

to  contiguous  property,  none  of  which  is  taken,  799-808. 
under  old  constitution,  846. 
new  burdens,  847,  848. 
for  what  injuries,  849. 

construction  of  new  constitution,  235,  850,  804-808. 
laying  a  highway,  799,  800. 
must  be  real-not  speculative,  802,  850,  90S,  626. 
depreciation  in  value,  802. 

must  be  in  excess  of  that  to  public,  804,  843-845. 
for  change  of  street  grade,  809,  810,  813-815,  818-820,  822,  824,  886. 
defective  sewer,  811.  817. 
injury  from  street  drainage,  812,  817. 
depriving  of  sidewalk,  816,  828. 
gutter  out  of  repair,  821. 
making  levee  of  street,  823. 
excavation  in  street,  825,  829,  830,  911,  917,  918. 
bridge  in  street,  826. 
bridge  approach  in.  835,  901. 
viaduct  or  bridge,  839.  840. 
structure  in  street,  833,  834. 
tunnel  in  street,  836, 837. 
water  tank  in,  838. 

railroad  in  street,  827,  832,  842,  845,  846-866,  883-910. 
grantee  of  city,  takes  subject  to  action,  851,  857. 

obstructing  access  to  lots,  831,  866,  237,  646,  677,  825,  830,  834,  835,  840-842,  865,  904. 
obstructing  access  to  place  of  business,  911,  915. 
additional  tracks  in  street,  865. 
overflowing  land,  852,  875,  905,  906. 
turning  water  and  mud  on  lot,  852. 
bridge  on  river,  898. 
right  to  have  condemnation,  853,  861. 
injunction,  as  a  remedy,  846,  854,  856,  858,  862,  863. 
obstructing  street,  as  an  element,  234,  891,  892. 
elements  of,  902. 

direct  and  physical,  851,  859,  903,  803. 
when  too  remote,  883,  884. 
depreciation  in  value,  626,  899,  903,  907. 
special— not  in  common,  890,  894,  895,  898. 
right  to  have  assessed,  853,  861. 
trespass  not  necessary,  904. 
matters  not  actionable,  909. 
under  ordinance  requiring  payment,  911-920. 
moving  place  of  business,  912,  916. 
loss  of  business  and  profits,  912,  913,  916. 
vacation  of  street,  237. 
embraces  past,  present  and  future,  407,  921-923. 

to  railway  from  crossing  its  track. 

property  adapted  to  a  special  use,  561. 

when  it  has  no  market  value,  561. 

loss  and  damage  from  proper  construction,  554. 

cost  of  bridge  and  keeping  in  repair,  555. 

evidence — expectations  of  contractors,  556. 

opinions  of  witness  on  matter  of  law,  557. 

opinions  of  experts  as  to  damages,  558. 

when  new  road  is  through  an  embankment,  560. 

use  of  road  as  an  entirety,  562. 

to  part  not  taken,  563. 

to  business  and  operation  of  road,  564. 

elements  of,  554-580. 

direct  and  remote,  565,  567,  568. 


406  INDEX. 

DAMAGES— Continued. 

speculative,  567. 

delay  in  operation  of  trains,  261. 

depreciation  of  value  of  residence,  565. 

part  left  less  useful.  565. 

lessening  capacity  for  business,  565,  508,  578,  580. 

increase  of  expenses,  565. 

stopping  of  trains  at  crossing,  566,  576. 

increased  dangers  from,  567,  568. 

severing  connection  with  elevator,  569. 

none,  for  a  service  required  by  law,  577. 

injury  to  railway  structures.  578,  580. 

evidence— plans  of  proposed  road,  570. 

stipulation  to  maintain  frogs,  &c.,  571-575,  57!). 

when  track  crossed  is  in  street,  701 . 
obstruction  of  track,  701. 
interf erance  with  business,  701 . 

inconveniences,  560. 
to  farm  lands,  on  condemnation,  599-607. 

market  value  of  land  taken,  583,  588,  004,  610,  633,  644,  693,  678,  710,  712,  716,  719 

when  there  is  no  market  value,  561,  642,  643,  678,  681-6S4. 

elements  of,  606,  609,  615,  614,  653,  640. 

amount  taken,  609,  617,  640,  707. 

fencing  an  element  of,  583,  588,  590, -613,  618. 

fencing  necessary,  618,  707. 

fencing  for  six  months,  649,  707. 

loss  of  spring  on  farm,  595. 

cost  of  ditching  made  necessary,  601. 

cattle  guards  as  an  element,  602. 

farm  crossing  as  an  element,  619. 

farm  thrown  open,  650. 

dividing  farm,  606,  609,  614,  621,  623,  623,  628,  636,  653,  677,  699,  583,  640,  71 

dangers  in  passing  over  track,  606,  614,  (128,  636,  654. 

danger  from  fire,  560.  614,  620,  636,  716. 

inconveniences,  560,  617,  609,  640,  650,  699,  716. 

physical  injury  to,  617,  629. 

incidental,  677,  680,  707. 

direct  and  remote,  565. 

building  destroyed,  611. 

easement  as  bearing  on,  612. 

conjectural,  657. 

cost  of  improvements,  658. 

difficult  access  to  highway,  677. 

must  be  appreciable,  712. 

speculative,  567,  718. 

cutting  off  small  part,  621-624,  628,  636. 

difference  in  part  left,  624,  685,  709,  716. 

value  of  strip  cut  off,  606 

to  part  left,  629,  636,  715. 

must  be  direct  and  physical,  629. 

depreciation  of  value,  710,  565,  626.  720,  578,  795,  802,  805,  875,  888,  899,  1)02-906. 
difference  in  value,  626,  716,  659,  685,  691,  709,  710,  716,  720. 
evidence  as  to,  717. 
its  uses  and  capabilities,  721 . 
structure  put  on  land  by  railway,  630,  665,  667. 
blocks  when  treated  as  distinct  tracts,  635. 
as  whole  tract  or  separate  parts,  637. 
as  part  of  an  entirety,  642,  643. 
when  only  nominal,  534,  655. 
to  a  rival  ferry  whose  land  is  taken,  553. 
to  lessee — future  profits,  647. 
for  telegraph,  not  excessive,  648. 
must  be  probable,  654. 
for  depot,  656. 

what  owner  would  take,  not  proper,  711. 
based  on  cash  value,  719. 
prospective  value,  722-724. 
value  to  the  owner,  667,  673,  678,  711. 
when  treated  as  part  of  entire  property,  635,  637,  642,  643. 
of  strip  cut  off,  of  value  only  as  a  part  of  whole,  686,  687,  714. 
when  part  taken  is  of  greater  value  as  a  whole,  714. 
to  lessee  of  a  flower-garden,  660,  661. 

loss  of  business  and  profits,  660,  661. 
profits  no  element  of,  682. 
destruction  of  pond  for  a  mill,  690. 

of  pond  for  ice,  691. 

injury  to  business,  whole  property  taken,  692. 
to  property  as  an  entirety,  691 . 
to  tenant,  when  excessive,  697,  703,  704. 


INDEX.  407 

DAMAGES— Continued. 

from  change  of  plans,  702,  728,  734,  758,  757. 
before  assessment,  705. 
must  be  proved,  1041. 

of  the  evidence. 

of  trespass  not  proper,  736. 

stipulation  as,  759. 

profile  of  grade,  760. 

opinions  of  witnesses,  726,  741,  742,  744. 

right  to  contest,  proof  of  title,  506. 

of  adaptibility  to  a  use,  764,  724,  671. 

of  other  sales,  765,  766. 

evidence  bearing  on.  657. 

of  location  of  land,  641. 

estoppel  to  claim,  497-500. 

as  of  what  date. 

date  of  filing  petition,  719,  786,  788-790. 

when  of  date  of  condemnation,  719. 

when  of  date  of  trial,  787,  783,  784. 
only  issue  for  the  jury,  507,  524. 
corporate  existence  not  for  jury,  528. 
separate  assessment  as  to  fruit  trees,  600. 
to  be  found  separately  from  compensation,  533,  535,  539,  540. 
to  lands  not  described  in  petition,  769-782. 

when  cross-petition  necessary,  769-782. 

several  lots  constituting  one  tract.  769. 

evidence  confined  to  lots  described,  769,  770,  773. 

may  be  assessed  to  balance  afterwards,  772. 

on  "all  named  in  cross-petition,  774. 
to  be  found  by  jury,  282. 
who  entitled— grantor  or  grantee,  758,  791. 
additional  use  or  burden,  232,  239,  241. 
rif'ht  of  city  to  have  assessed.  340. 
by  what  law  fixed,  309,  316-318,  320. 
includes  past,  present  and  future,  407,  921-923,  792-795. 
recovery  a  bar  to  future  action,  795. 
diversion  of  stream,  767. 
for  a  park,  784. 

entry  and  preliminary  survey,  1220, 1221. 
agreement  to  release,  a  bar,  1228. 
obstructing  flow  of  water,  1239. 
to  lot-owner— use  of  street,  1285. 
diversion  of  trade  and  travel,  826. 
to  lot-owners  by  depot  and  track  in  street,  1513. 
from  neglect  to  fence.  1518,  1586-1588,  1817. 
to  crops  for  want  of  fence,  1589. 
exemplary,  1792. 
leaving  gate  open,  1807. 
treble  for  neglect  of  duty,  2145-2l47a. 
neglect  as  to  brakes,  2235. 
iujnr.y  to  baggage,  2274. 

expulsion  from  cars,  2288-2290,  3307,  2i30,  2334. 
shortage  in  weight  of  grain,  2562. 
neglect  to  transport  grain  in  bulk,  2600. 
non-delivery  of  grain  at  proper  place,  2615. 
treble  for  extortion,  271*. 
against  warehouseman,  2747,  2783,  2985. 
See  ASSESSMENT  OP  COMPENSATION  AND  VALUE. 

DANGER. 

elemen'  of  damage. 

by  fire,  560,  614,  620,  636,  640. 

in  passing  over  railway,  606,  654,  716,  628,  636. 

DEATH. 

from  injury  to  cars,  171 . 

of  land-owner  in  condemnation,  425,  1063. 

comparative  negligence,  2070,  2097. 

from  leaping  from  cars,  2209. 

of  stockholder,  abates  suit  against,  2901. 

DEBT. 

line  recovered  in,  1473. 

for  penalties,  1506,  1807,  2087,  2103,  2126,  2128,  2145,  2152,  2i:i5,  2236,  2455,  2-156,  2.">99 

2641,  2712,  2811. 

of  corporation— stockholder's  liability,  120i». 

liability  of  consolidated  company  for,  of  old  corporation,  1391,  1406. 
purchaser  of  road,  not  liable  for  its,  1392. 


408  INDEX. 

DECLARATION. 

killing  stock,  for  want  of  fence,  1534-1536,  1542,  1548,  1549,  1560,  1501,  1563,  1505-1567, 

1569,  1572,  1595,  1598.  1083,  1690. 
negativing   exceptions,  1548,  1549,   1500,   1561,   1503-1567,   1090,  1093,   1694-1090,  1097, 

1099,  1700. 

need  not  aver  gross  negligence,  1091. 
fencing — when  surplusage,  1(592. 
when  necessary  to  show  want  of  fence,  1093. 
negligence-  -killing  at  farm  crossing,  1094. 
time  road  open  for  use,  1698,  1710. 
defects  cured  by  verdict,  1701 . 
neglect  to  fence  and  leaving  gate  open,  1702. 
facts  of  case,  1703,  1713. 
as  to  the  injury,  1704. 

no  fence  where  animal  got  on  track,  1705. 

place  where  road  was  opened,  1700. 

sufficiency,  1707. 

location  or  road,  1708,  1710. 

duplicity,  1710. 

time  and  place  of  injury,  1712. 

at  common  law,  1711,  1714, 1710. 


degree  of  negligence,  1091,  1715. 
surplusage,  1710. 


injury  in  city,  1717. 

value  of  stock,  1718. 
for  penalty,  2140. 
for  lost  baggage,  2248. 
injury  from  lire,  2526. 
extortion,  2702,  2704,  2716-2718. 
injury  from  railway  in  street,  897. 
on  chief  inspector's  bond.  2703. 
receiver  against  stockholder,  2827. 
creditor  against  stockholder,  2889,  2891. 

sufficiency  to  admit  evidence,  2890. 
creditor  against  officers  of  corporation,  2920,  2924. 

DECREE. 

of  foreclosure,  1013,  1354. 

in  lien  case,  1093,  1094,  1096. 

against  stockholders— apportionment,  2817,  2911. 

when  not  evidence  against  stockholder,  2894. 
DEDICATION  TO  PUBLIC. 

action  for  a  new  burden,  241 . 

right  of  way  not  by  reservation,  1000. 

of  streets  by  plat,  1249. 

DEED. 

for  right  of  way  construed,  796-798. 
no  bar  to  action  for  flooding,  878. 

right  of  way  only  by,  998. 

reservation  in,  passes  no  title,  998. 

clause  in  for  reversion,  1000. 

indeflniteness  of  description,  1227. 

of  city  for  right  of  way  in  street,  1254,  1255. 
DE  FACTO— corporation,  512,  513,  510,  528,  529,  1151,  1147,  2t>!)!l. 

DEFECTS. 

in  pleadings,  417,  782. 
curing,  in  incorporating,;!  463-1466. 
curing  by  verdict,  1701. 
DELEGATION. 

of  power  to  inspect  grain,  113,  2V.">7. 
of  power  of  eminent  domain,  200,  300. 
of  power,  379,  382,  383,  391 . 
by  city  of  its  power,  120-123. 132. 

to  locate  road,  1<!58,  1258a,  1262,  1262a,  1263a. 
of  police  power,  1438. 

DELAY  IN  TRANSPORTATION. 

liability  for,  31 42-21 47a,  2570,  2572,  2573,  2575. 
as  to  grain,  25(«,  2560,  2569. 
in  favor  of  other  shippers,  2577,  2578,  2581,  2582. 
.what  will  excuse,  2579,  2585,  2586,  2587,  2589,  2591-2593,  2598,  2594. 
from  neglect  to  forward.  2588. 
inability  of  connecting  lines,  2583. 
measure  of  damages,  2584. 
action  lies  for,  2595. 
DELIVERY. 

of  grain  to  elevators,  106,  107. 
at  warehouses,  107-110. 


INDEX.  409 


DELIVERY— Continued. 

over  connecting  lines,  1480. 
where  and  to  whom,  2862,  2(500-2621. 
at  crossings,  junctions,  &c.,  2624. 
by  warehouseman  on  receipt.  3747. 

damages  for  neglect,  2747. 
of  goods — waiver  of  lien,  2750. 
of  grain  in  order  received,  27ti6. 

in  equal  condition  as  that  received,  2766. 
of  warehouse  receipt,  passes  grain,  2778. 
of  grain  on  return  of  receipt,  2800. 
by  warehouseman,  2969. 

DEMAND. 

of  illegal  rate— not  extortion,  2671. 

when  necessary  before  ejectment,  987-989. 

by  holder  of  warehouse  receipt,  2747. 
DEMURRER. 

defects  in  petition,  reached  by,  417. 

to  cross  petition,  5:23,  782. 

special  to  declaration  for  defects,  1711,  1712. 

DEPOTS  AND  GROUND. 

condemnation  for,  338,  416,  1213. 

extent  of,  370. 

measure  of  damages,  656-658,  669. 
evidence,— stipulation  to  build,  732. 
ladies'  waiting  room,  1158b,  1*36, 1504. 
change  after  location,  1325a. 
acquiring  land  for,  1476. 
on  school  land,  1492. 
duty  to  build  and  maintain,  1499. 
injury  from  defective  platform,  1500. 
grounds— quasi  public,  1501. 
when  passing  over,  no  trespass,  1501. 
negligence  in  passing  over,  1502. 
obstructing  passage  to  by  cars,  1503,  1505. 
penalty  as  to,  1506. 
consent  of  city  to  one  in  street,  1513. 
opening,  lighting  and  warming,  2130,  2132-2134,  2138. 
accommodations  at,  2130,  2131. 
injury  to  passenger  at,  2131-2139. 
contract  to  maintain,  personal.  2130b. 
platform  and  approaches  to,  2131,  2134-2139. 
places  for  alighting  from  trains,  2131 . 
safeguards  and  lights  at,  2132,  2134. 
'  no  duty  to  fence  grounds,  1574,  1580,  1581 . 

DEPRECIATION  OF  VALUE. 

on  question  of  damages,  565,  578,  720,  795,  802,  805,  875,  888,  899,  902-908 

of  farm,  621-623. 

taken  as  a  whole,  622,  623. 

must  result  from  act  complained  of,  888. 
of  contiguous  lots,  638,  640,  801,  883,  884. 
See  DAMAGES. 

DESCRIPTION. 

of  road  in  general,  452. 

in  cross  petition,  523. 

sufficiency  of,  538. 

in  deed  for  right  of  way,  1227. 
DIRECTORS. 

election  of,  59,  1459. 

to  make  annual  reports,  61,  1427. 

penalty  for  neglect  to  make,  2641. 

majority  to  be  citizens,  67,  1187,  1187a. 

when  act  as  public  agents,  290. 

election  and  classification,  1175.  1180,  1187,  1459. 

election  after  time  fixed  for,  1187. 

to  list  property  for  taxation,  1493 . 

vacancies  and  by-laws,  1175. 

corporate  powers  in,  1175. 

service  of  process  on,  1091,  1131. 

trustees  for  stockholders,  1176. 

adverse  interest  in  contract,  1176a. 

compensation,  1177-1178b. 

charter— powers  of,  1179. 

make  financial  statements,  1183. 

increase  of  capital  stock,  1179a,  1207,  1207b. 

power  to  purchase  stocks,  1205. 
-30 


410  INDEX. 

DIRECTORS-Confinued. 

to  require  payment  of  subscription,  1192. 

not  until  whole  stock  is  taken,  1198. 
removal  of,  1185. 
powers  in  general,  1207b. 

to  make  bonds  convertible  into  stock,  1338,  1467. 
estoppel  to  deny  consolidation.  1408. 
must  agree  to  terms  of  consolidation,  1422. 
minority  representation,  1459. 
cumulative  voting,  1459. 
to  call  stockholder's  meeting,  1468. 
mode  of  voting  for,  1459. 
election  for  union  depot,  1507,  1516. 

term  of  office  and  notice,  1516. 
examination  by  railroad  commissioners,  2638. 
liability  for  debts  in  excess  of  capital  stock,  2919-2925. 

DISCHARGE -of  stockholder's  individual  liability,  2876. 
DISCOVERY. 

bill  for,  against  corporation,  114-116. 

party  to  bill,  114, 115. 
DISCRETION— as  to  same  jury  assessing  several  tracts,  463. 

DISCRIMINATION. 

unjust,  prohibited,  95,  96,  98. 

in  rules  and  regulations,  1157s. 

on  account  of  color.  1331,  1*32,  2308,  2309. 

in  fare— want  otticket,  2296. 

as  to  carrying  grain,  2562. 

as  to  shippers,  2563,  2564,  2577. 

taking  goods  out  of  order,  2581,  2582. 

must  be  shown  to  be  unjust,  2698. 

by  warehousemen,  2739. 

See  EXTORTION.     UNJUST  DISCRIMINATION.    . 

DISMISSAL. 

of  petition,  on  administrators1  motion,  425, 

after  filing  cross-bill,  459. 

on  appeal,  1038, 1049. 

of  cross  petition— appeal  lies,  1061. 

of  suit  for  fines,  1474. 

consent  of  railroad  commissioners  necessary,  2719. 

DISORDERLY  CONDUCT— expulsion  of  passenger  for,  2275,  2281,  2317,  2321-2323,  2550. 

DISSOLUTION. 

of  insolvent  corporation,  24. 

of  corporation  by  legislature,  void.  55,  56. 

failure  to  elect  directors,  not  a,  1187. 

of  railway  by  consolidation,  1409,  1420,  1421. 

not  building  road  in  time,  1462. 

no  release  of  stockholders,  2876. 

DISTANCE  OF  HAUL— on  question  of  unjust  discrimination,  2670. 
DITCHES, 

water  and  ice  in,  as  negligence,  1689,  148. 

made  necessary — element  of  damages,  601 . 

power  of  city  to  compel  opening  of,  145. 

new  use  of  street— compensation,  269. 

liability  for  negligence  in  construction,  879-882. 
DIVERSION. 

of  stream  on  farm.  76V. 

of  trade  and  travel,  826. 

of  a  stream,  868,  869. 

DIVESTITURE  OF  TITLE. 

of  title  by  condemnation,  192,  205,  1008. 

strict  compliance  required,  321. 
DIVIDENDS. 

on  fictitious  stock,  87. 

must  be  general  on  stock,  1385a. 

to  purchaser  of  stock  on  execution,  2939. 
DIVIDING  FARM. 

element  of  damage,  606, 1.09.  621-623,  628,  636,  640,  653,  667,  699,  716. 

of  warehouse  receipts,  2743. 
DOCKS— damages  to,  899. 
DOCKET  ENTRY— evidence,  451. 
DOMESTIC  CORPORATIONS. 

consolidation  with  foreign,  1413,  1414,  1415,  1422. 

power  to  contract  with  foreign,  1476. 


INDEX.  411 


DOMESTIC  CORPORATIONS— Continued. 
for  the  lease  of  their  roads,  1476. 

contracts  for  land  for  depots,  1476. 

may  purchase  personal  property,  1476. 

powers  applicable  to  horse  railways,  1477. 
DOMICILE  OF  CORPORATION. 

of  railway.  1143a. 

of  consolidated  company,  1419. 

DONATION— reduced  rates  for,  binding,  1460, 1461. 
DOUBLE. 

liability  of  stockholders,  2904-2911 . 

damages,  refusing  to  give  sheriff  certificate,  2935. 
condition  to  liability— waiver,  2936. 

value  of  fencing.  1817.  1820. 

of  grain,  delivered  contrary  to  orders,  2622. 
DRAINAGE. 

power  of  city  to  require  of  railways,  145. 

liability  for  ice  and  water  in  ditches,  148. 

culverts  and  sluices  under  railway  for,  1235. 

system,  benefits  by,  204,  587. 

of  streets,  812,  817. 

unskillful  drains,  879^2. 

DRAWBACK— of  fare,  evidence  of  unjust  discrimination,  370B. 

DUMMY  RAILWAYS,  1145. 

DUPLICITY— in  declaration,  1711. 

DURATION— of  corporation,  1153,  1172. 

EARTH— taking  for  road,  1214. 

EASEMENT. 

in  highway— right  of  way,  268. 

perpetual  in  street,  268-270,  272. 

as  affecting  amount  of  compensation,  *>12. 

deed  held  as  giving  only,  1230. 

in  city -grant  for  railway,  1299. 
EATING  HOUSE— obstructing  passage  to,  I500a. 
EJECTING  PASSENGER.    See  PASSENGER. 

EJECTMENT— when  it  lies,  987-990,  995,  997, 1001,  1004,  1005,  1252,  1260. 
ELECTION. 

law  in  cities,  not  local,  31 . 

to  renew  charter,  1172. 

under  what  law  to  proceed,  312,  315. 

of  remedy,  1612. 

of  consignee,  to  treat  grain  as  converted,  2622. 

as  to  company  to  sue,  1602. 

held  to— in  location  of  road  and  depot.  1225a. 

ELECTI9N  OF  DIRECTORS. 

constitution  as  to,  59. 

election  and  classification — vacancy,  1175. 

cumulative  voting,  59_,  1459. 

minority  representation,  59,  1459. 

right  and  mode  of  voting,  59. 

vote  in  person  or  by  proxy,  59,  1180a,  1459. 

when  and  where,  1175. 

regulated  by  by-laws,  1175,  1180. 

city  may  vote  by  proxy,  1181. 

time  of— fixed  in  by-laws,  1187. 

effect  of  neglect  to  elect  at  time  fixed,  1187. 
ELEVATED  WAYS. 

incorporation,  2942. 

obtaining  right,  of  way,  2943. 

materials— compensation,  2944. 

increase  of  capital  stock,  2945. 

powers  and  restrictions,  2946. 

uae  of  streets  by— how  obtained,  2947,  2948. 
ELEVATORS. 

severing  connection  with,  569. 

delivering  grain  at,  107,  2*500,  2602-2608. 

connections  with,  1309-1311. 

track  to,  when  part  of  road,  2604. 

when  railway  not  bound  to  deliver  at,  2605-2608. 
EMBANKMENT. 

intersection  of  railway  through,  555,  560. 

on  land,  value  in  condemnation,  665-667. 


412  INDEX. 


EMBANKMENT— Continued. 

obstruction  of  water  by,  870,  871, 1240. 
condemnation  of  extra  ground  for,  1331 . 
duty  to  fence  road  at  1570. 

EMBEZZLEMENT— by  agent,  &c.,  of  railway,  169, 170. 
EMINENT  DOMAIN. 

under  old  constitution,  179. 
constitution  limits  power,  180,  183,  222. 
not  conferred  by  constitution,  219,  256. 
nature  of  power,  183,  227,  228,  199. 
not  applicable  to  municipal  subscription,  187. 
to  taxing  power,  187,  203. 
to  special  assessments,  204,  360,  365,  193. 
effect  on  taxing  power,  223. 

on  special  assessments,  224. 
grant  in  restraint  of,  void.  229. 
no  application  to  fixing  of  charges,  80. 
limitations  and  restrictions,  390,  199,  214,  183. 
legislative  power  over,  304.  • 
statute  is  remedial,  305. 

is  mandatory,  306,  328. 
legislative  authority  to  exercise,  200. 
delegation  of  the  power,  200,  379,  382,  383. 
repeal  of  laws  by  constitution,  308,  310,  311,  313,  314,  324. 
construction  of  law— strict.  305,  306,  328. 
what  subject  'o  the  right,  242-256a,  256-276. 

franchises  and  property  of  corporations,  215,  91. 

ferry  privilege.  243. 

state  grants,  243,  244. 

horse  railway  for  another,  247-251 . 

property  in  street,  247. 

corporate  property,  how  far  private,  255 . 

easement  in  highway,  268,  270-272. 

leasehold  estate,  275. 

trees  near  road,  1231. 

property  in  public  use,  252-256e,  262, 93. 

for  new  use,  263,  254. 

of  railway  property,  245-249. 

one  railway  for  another,  256-256e . 

crossing  another  railroad,  257. 

presumption  against  monopoly,  258. 

grant,  not  exclusive,  258-260. 

rival  ana  competing  roads,  260,  261. 

when  use  is  different,  263. 

for  crossing  over  another  road,  264, 1235. 

right  to  additional  crossings,  265-267,  273. 
effect  of  prior  contract,  266. 
ground  of  necessity,  Immaterial,  267. 
what  is  a  taking,  230-241 . 

partial  by  damaging,  196,  230,  234,  235,  642,  687. 

new  remedy  for  damaging,  235,  241 . 

what  is  property,  236. 

imposition  of  new  duties,  232,  239,  1296,  241,  269,  1431*. 

vacation  of  street,  237. 

deprivation  of  property,  307. 

of  t he  necessity  or  expediency. 

a  legislative  or  political  question.  391,  394,  392. 

expediency  of  exercise  by  city,  393. 

court  to  decide  as  to,  385-389. 
of  the  use  and  purpose. 

must  be  a  public,  195, 198. 

private  road,  195. 

limited  to  a  public  use,  289-302. 
of  the  compensation. 

under  old  constitution,  184. 

necessity  of   191,214,234,235. 

when  in  benefits,  194. 

making  provision  for,  202. 

fixing— a  judicial  act,  206,  £09,  326. 

must  be  pecuniary,  210. 

good  before  payment,  212. 

for  railway  crossing,  1304. 

trial  by  jury,  207,  214,  215,  278-288,  303,  91,  209,  211. 
on  appeal,  211. 
laying  highway,  284,  285. 
tiltcnto  be  paid. 

before  entry,  201. 


INDEX.  413 


EMINENT  DOMAIN— 

payment  necessary  to  complete,  208. 

when  to  be  made,  185,  189,  190,  197,  ail. 
•     taking  before,  212,  1214. 

entry  enjoined,  till  paid,  1110,  197. 
of  the  divestiture  of  title,  192,  205. 

judgment  passes,  205. 

strict  compliance  necessary,  319,  321-323. 
who  man  exercise  right. 

state  alone  can  give  the  power,  213. 

right,  how  exercised,  325. 

who  may  condemn  and  for  what  purposes,  327. 
who  may  enforce,  333. 

by  act  of,  1849,  334. 

by  act  of  1852,  335. 
power  of  cities  and  villager. 

for  streets,  337,  340,  358,  364,  365. 

Eurposes  not  specifically  named,  342. 
ar  city  prison,  343. 

for  boulevard,  348. 

for  a  sewer,  361. 

when  enjoined,  392. 

grade  of  street,  820. 
powers  of  railways. 

to  condemn,  181.  . 

materials  by  contractors,  182. 

for  lateral  or  branch  road,  329-331,  353,  354. 

forfeiture  of  right,  332. 

limitation  as  to  time  to  locate,  332. 

not  exhausted  by  exercise,  336,  349. 

for  work  and  paint  shops,  337,  338. 

for  depot  grounds,  338. 

for  lumber  sheds,  338. 

to  take  public  property,  341. 

to  use  streets,  344,  345. 

of  ground  used  by  consent,  350. 

by  <le  facto  corporation,  362. 

for  switches,  turnouts  and  side  tracks,  352,  356 . 

for  additional  tracks  in  city,  356. 

to  build  road  in  city,  357,  359. 
no  ordinance  necessary,  i59. 

extent  of  land  taken,  366-372. 

width  of  right  of  way,  S66,  367,  369-371. 
for  depots  and  side-tracks,  370. 
governed  by  the  necessity,  368,  372. 

to  acquire  land'  under,  1213. 

for  what  uses  and  purposes,  1213. 

entry  on  adjacent  land  for  materials,  1214. 

to  take  necessary  materials,  1214. 

of  union  depot,  1512. 

of  elevated  ways,  2943,  2444. 
when  constitutional  provision  took  effect,  216. 

effects  on  prior  right",  218. 

repeal  of  prior  laws,  217.  221,  232. 

application  to  pending  proceedings,  225,  226. 
what  law  governs,  309,  312,  315-320. 

petitioner  bound  by  election,  312. 
for  telegraph,  351, 

See  COMPENSATION,  CONDEMNATION,  CONSTITUTION,  DAMAGES. 
EMPLOYE. 

rules  and  regulations  for  safety  of,  1335. 
liability  for  injury  to,  1157m,  1158f. 
injury  to,  from  neglect  to  fence,  1584. 
ENGINE. 

offenses  relating  to,  171, 172,  174. 
requiring  bell  on,  1442. 
injury  to  stock  Dy,  1518. 
ENGINEER. 

willful  injury  to  stock,  175. 

service  of  process  on,  1099. 

line  for  injury  to  stock,  2084. 

frightening  team,  2084-2086. 

starting  train  without  warning,  2087-2088a. 

culpable  negligence  at  railway  crossing,  2102. 

same  fine  as  on  corporation,  2117a,  2120. 

contributory  negligence— running  too  fast,  2193. 

joining  in  strike,  2552. 

opinion  of,  as  to  damages,  558, 


414  INDEX. 


ENTIRETY. 

damages  to  use  of  property  as  an,  562. 

when  mocks  treated  separately,  635. 

relative  value  of  part  taken,  to  whole,  642,  643. 

strip  cut  off,  valued  as  of  the  whole,  686,  687,  691,  714. 

lots  forming  one  tract,  769. 

ENTRY. 

before  payment,  282,  963-965.  966-986,  1004,  1024. 
before  judgment,  9:50,  963-965. 

by  consent,  waives  no  right,  992. 
when  enjoined,  960. 
when  a  trespass,  948,  1003. 
for  preliminary  survey— damages,  705, 1220. 
for  a  telegraph,  1002. 
on  adjacent  land  for  materials,  1214. 
pending  appeal,  1057,  1065,  1067. 
liability  for  private  injury  by,  1221. 
evidence  of  a  violent,  not  proper  on  condemnation,  1222. 
on  right  of  way  to  fence,  1817. 

EQUITABLE  LIEN. 

of  creditor  on  stock,  1204. 

assignment  of  stock,  enforced  in  equity,  1201,  1201e. 

assignment  of  stock,  1200f,  1201b,  1201c,  1202a,  1202b. 

attachment  by  creditor  of  corporation,  2828,  2903. 
ESCAPE. 

of  cattle,  1749,  1751. 

of  fire  from  engine,  2484-2548. 

See  FIRES. 
ESTIMATES— evidence  on  assessment  of  damages,  727. 

ESTOPPEL. 

of  city,  as  to  use  of  street,  291. 
of  railway  as  to  width  of  right  of  way,  415. 
to  claim  damages,  500. 

•     to  deny  defendant's  title  to  land,  505,  509,  511 . 
of  city  to  deny  validity  of  proceeding,  955. 
by  deed  for  right  of  way,  878 . 
by  judgment,  1005. 

of  director  to  deny  corporate  existence,  1192J . 
of  stockholder  to  deny  by-laws,  1157h . 
to  deny  liability,  2897-2899. 

to  show  charter  unconstitutional,  2898,  2906. 

to  deny  organization,  2899. 
of  director  to  deny  consolidation,  1408. 
of  corporation  to  deny  validity  of  mortgage,  1363, 1364. 
of  corporation  to  deny  validity  of  stock,  1385,  1200c. 

EVIDENCE. 

of  corporate  existence,  362. 
of  incorporation,  1166-1171a. 

by  user  under  the  law,  1169. 

certified  copies  of  articles,  1171, 1171b. 

certificate  of,  1171a. 

articles  of,  1171,  1171c. 

books  to  show  corporate  acts,  1166. 

showing  organization,  1167. 

admission  of  corporate  existence,  1170. 

not  for  the  jury,  528. 

books  and  acts  prima  facie,  1166. 

evidence  and  proof,  512-516,  528,  529. 
of  consolidation.  1394. 

certified  copies  of  articles,  1394, 1424. 
on  condemnation. 

width  of  way  necessary,  not  proper,  371. 

sufficiency  to  show  a  de  facto  corporation,  512. 

plea  not  necessary  to  admit,  519. 

of  inability  to  agree,  521. 

by  tenant  in  common  good  for  all,  527. 

evidence  on,  505-529. 

on  assessment  of  damages,  385.  388,  389,  414. 

plans  and  specifications,  418,  569,  570. 

stipulation  to  make  and  repair  crossing,  571. 

plans  and  profiles,  750,  757,  727. 

stipulation  of  petitioner,  759. 

profile  of  grade  of  street,  760,  887. 

plans  of  proposed  building,  to  show  uses,  754,  755. 

publication  of  notice,  448. 

stipulation  to  build  depot,  732. 


INDEX.  415 


EVIDENCE -Continued. 

verbal  promises  of  agent,  730. 

expectation  of  contractors,  556. 

to  show  when  certificate  presented,  450. 

of  selection  of  jury  by  justice,  451. 

of  application  to  appoint  commissioners,  478. 

showing  day  of  meeting  fixed,  480. 

from  view  of  premises,  492,  495. 

opening  and  closing,  522,  1041. 

working  no  injury,  517. 

of  passage  of  ordinance  for  street,  526. 

when  none  as  to  cost  of  fencing,  534. 

of  cost  of  bridge  made  necessary,  555. 
opinions  of  witnesses— matter  of  law,  557. 

experts  as  to  damage,  558,  559,  747,  748. 

as  to  value,  737,  738,  744,  753,  756,  (25. 

as  to  damages,  738,  741,  742,  747. 

as  to  difference  in  value,  626. 

jury  not  bound  by,  745-749. 

as  to  benefits,  733. 

weight  of,  726,  727,  747,  748,  753,  745,  746. 
as  to  value  of  land,  656,  678. 

for  a  special  use,  561,  751 . 

for  any  use,  662,  663, 

of  compost  and  manure,  662. 

offers  aoove  market,  669. 

special  value  above  market,  669,  670. 

when  no  market  value,  679. 

deed  as  evidence  of,  739. 

view  of  the  land,  740,  744,  768. 

state  of  improvements,  752. 

for  selling  in  lots,  743. 

value  for  any  purpose,  764. 

of  other  sales  of  lots,  765,  766. 

of  whole,  to  get  that  of  part,  776. 

capacity  for  other  uses,  694-696. 

from  uses  and  capabilities,  721,  893. 

prospective,  too  remote,  722,  723,  724. 

location  of  the  land,  641 . 
as  to  damaaes. 

depreciation  of  value,  578,  579. 

when  nominal,  763. 

from  diversion  of  stream,  767. 

change  of  plans,  738,  734,  758. 

explaining  plans,  729. 

cross-examination  as  to  735. 

of  violent  entry— not  proper,  736,  668,  1222. 

physical  condition  of  land,  717. 

bridge  in  street,  H26. 

of  obstruction  to  street,  891 . 

ordinance  against,  892,  896. 

ordinance  for  railway  in  street,  896. 

depreciation  in  value,  when  proper,  888. 

value  before  and  after,  899. 

cause  of  decline  in  trade,  900. 

throwing  dust  and  dirt  from  bridge,  826,  900. 

elements  of,  908. 

excavations  in  street,  909. 

damage  to  business— sales,  913.  915. 

when  necessary  to  prove  possession,  etc.,  887. 

averaging  as  to  damages,  761,  762. 

confined  to  lots  described,  769-771,  773,  780,  781. 

burden  of  proof,  777. 

deed  of  release,  7!»8. 

limiting  by  instruction,  755. 

in  rebuttal,  777,  893. 

on  cross-examination,  jar  to  building,  901. 
judgment  of  condemnation,  1028. 

attacking  collaterally,  1029. 
officers  return,  primn  facie.  1126. 
by  laws  against  strangers,  1157c. 
of  rules  and  regulations,  1158d. 

witnesses  construction  of,  11581. 
to  conducto"r;  of  passenger's  rights,  1161. 
of  wrongful  issue  of  certificate  of  stock,  1200e. 
of  order  of  directors  not  entered,  1200e. 
of  execution  of  mortgage  by  railway,  1357. 
of  acceptance  of  contract,  1463. 


416  INDEX. 

EVIDENCE— Continued. 
of  conditional  sale,  14%. 
negligence  when  inferred,  1605. 

when  must  be  proved,  1605,  1648-1650. 

when  need  not  be,  1613,  161(5, 1617,  1594. 

killing  of  xtock. 

proof  how  long  road  has  been  open,  1536,  1543,  1544,  1760,  1762. 

as  to  place  of  killing,  1560,  1570. 

of  duty  to  fence  at  place,  1564,  1761. 

sufficiency  of,  1593,  1594,  1599,  1776. 

of  insufficiency  of  fence,  1600. 

negligence  not  shown,  by  killing,  1652,  1653. 

of  the  place  of  accident,  1763,  1764,  1765,  1767. 

of  the  management  of  train,  1766. 

of  ownership  of  cattle,  1768,  1769. 

of  injury  by  defendant's  road,  1770-1775. 

of  the  venue  and  time,  1777,  1778. 

variance,  1779-1782. 

preponderance  sufficient,  1774. 
of  damages  from  Texas  cattle,  2148. 
damage  from  speed  of  train,  2152. 

ordinance  limiting,  2159,  2194-2198. 

that  it  caused  the  injury,  1837-1849;  1852,  1853, 1855-1864. 
want  of  signal  at  highway. 

existence  of  highway  t  1903. 

affirmative  and  negative,  1904,  1905. 

prima  facie  case  of  negligence,  2079. 

as  to  cause  of  injury,  2163. 

due  care  of  plaintiff,  2183. 
to  recover  for  killing  animal,  2197. 
to  show  speed  of  train,  2199,  2200. 
as  to  baggage  checks,  2237,  2238,  2246,  2v'48,  2266. 
to  show  freight  train  carries  passengers,  2306. 
of  notice  of  regulations,  2329. 

as  to  assent  to  limiting  carrier's  liability,  2405,  2410-2412,  2418,  2429a,  2430,  2436. 
escape  of  fire,  shows  negligence,  2484-2486,  3495,  2496. 
of  distance  sparks  thrown,  2493. 
proof  of  one  count  enough,  2494. 

rebutting  presumption  from  escape  of  fire,  2-195,  2521,  2533,  2540,  2546. 
escape  or  fire,  prima  facie  of  negligence,  2495,  2484,  2510,  2516,^2517,  2525,  2535. 

not  conclusive,  2498,  2525. 

grass  on  right  of  way,  2499,  2520,  2535,  24%,  2497. 
of  amount  of  sparks  emitted,  2511. 
of  safe  condition  of  engine,  2516,  2519. 
of  weight  of  grain  shipped,  2502,  2599. 
of  custom  to  allow  connections,  2612. 
finding  of  railway  commissioners  prima  facie,  2636. 
schedule  of  rates  only  prima  facie,  2699,  2720. 
of  extortion  and  unjust  discrimination,  2706,  2708. 

preponderance  sufficient,  2712. 
warehouse  receipts  of  ownership,  2754. 

parol — to  vary,  2781. 

of  defendant  being  a  stockholder,  2890,  2892,  2893. 
of  ownership  of  stock,  2893. 
when  recital  in  decree  is  not,  2894. 

EXAMINATION. 

of  books  of  stock,  105,  1471,  2638,  1186. 

of  grain  in  warehouse,  2768. 

of  scales  of  warehouses,  2768. 

of  signals  at  railway  crossing,  272(i,  2i'27. 

of  witnesses  by  railroad  commissioners,  2639,  2ti40. 

of  railroads  and  warehouses  by,  2635. 

See  BOOKS  OP  CORPORATION. 

EXCAVATIONS. 

under  railroad  tracks,  555,  560. 

in  streets,  825,  829,  830,  908. 

EXCEPTED  PLACES— for  fencing  track,  1518,  1547.-1549,  1563,  1574-1581,  1625,  1<>90,  1693, 
1697,  1699,  1700,  1705,  1707,  1761,  1763,  1764,  1T67. 

EXCUUSION  TICKET— may  be  issued,  2706. 
EXECUTION. 

rolling  stock  liable  to,  62,  1498.  « 

on  judgment  of  condemnation,  925-932,  946 . 

on  justice's  transcript,  1091. 

when  grain  liable  to,  against  warehouseman,  2784,  2785,  2799, 

sale  of  stock  on,  2926-2939.; 

rights  of  purchaser,  2937-2939. 


INDEX.  417 

EXECUTOR. 

liability  for  stock,  1208. 

appeal  from  condemnation,  1063. 
EXPEDIENCY. 

of  the  exercise  of  eminent  domain,  373-394. 

of  road  not  involved  in  appeal,  374,  375,  1042. 

of  laying  street,  375. 
EXPERTS.     See  557,  747. 
EX  POST  FACTO  LAW,    See  1519. 
EXPULSION  OP  PASSENGER.     See  PASSENGERS. 
EXTORTION. 

in  railways,  75,  76.  81. 

penalties  for,  76,  80,  94,  3712. 

limitation  of  action,  97. 

laws  to  prevent,  94,  1428,  1515. 

when  railway  guilty  of,  2645. 

evidence  necessary  to  show,  2696-2699. 

declaration  in  suit  for,  2702,  2704. 

evidence  of  2706,  2724. 

preponderance  enough,  2712. 

attorney's  fees  in  action  for,  2714. 

no  action  until  schedule  of  rates,  2721. 

fines  to  county,  2724. 

suits  for  to  have  precedence,  2724. 

when  guilty  of,  2645. 

See  UNJUST  DISCRIMINATION. 

EXT.RA  CHARGES— neglect  to  procure  ticket,  1157i,  1157k,  2668. 
FACILITIES. 

for  marketing  by  railway,  587. 

for  connections  and  crossings,  1304. 

for  transportation,  2140,  2141 

FACT— questions  of,  1855,  1856,  1858,  1859,  1925,  2175,  2177,  2180,  2358,  2363,  2369,  2378,  2397, 

2429a,  2496,  2502,  2507,  2548. 
FALSE  SIGNAL— placing— punishment,  171. 
FARE. 

includes  baggage,  2236. 

payment  not  necessary  to  passsenger's  protection,  2337. 

officer  taking,  to  wear  badge,  2338. 

return  prnrata  on  expulsion,  2550. 

extra  for  want  of  ticket,  2668. 

See  EXTORTION.    CHARGES. 
FARM  CROSSINGS. 

an  element  of  damages,  619,  680,  1529. 

not  when  it  will  injure  road,  680. 

duty  of  railway  to  make,  1518, 1528,  1529. 

what  is,  1583. 

duty  to  keep  bars  or  gates  at,  1626. 
leaving  down  or  open.  1807. 

when  owner  may  make,  1817. 

signals  not  required  at,  1831 . , 

See  FENCING  TRACK. 

FEDERAL  COURT— removal  of  case  to,  430. 
FENCING  TRACK. 

powers  of  cities  to  compel,  144,  1280. 

verdict  should  show  amount  allowed  for,  531,  532. 

whose  duty  to  keep  up,  how  shown,  532. 

an  element  of  damages,  534,  583,  590,  707. 

instructions  as  to,  618,  649,  707. 
right  of  owner  to  make,  1009. 
keeping  up  for  six  months,  707. 
legislature  may  require,  1442. 
duty  and  liability,  1518. 
'    within  what  time,  1518. 

constitutionality  of  statute,  1519-1525. 
construction  of  the  law.  1526-1529a. 
effect  of  other  laws  on,  1530-1546. 
applies  to  all  railways,  1526. 
law  remedial  -  not  penal,  1527. 
construction 

excepted  places,  1518,  1547-1549,  1563,  1574-1581,  1625,  1690,  1693,  1697,  1699,  1700, 

1705,  1707,  1761-1764,  1767. 
gates  and  bars  at  farm  crossings,  1518,  1626. 
construction  of  farm  crossings,  1518. 
construction  of  cattle-guards,  1518,  1625. 
-31 


418  INDEX. 

FENCING  TKACK-Conttnued. 

meaning  of  "necessary  farm  crossings."  1528, 1529. 

must  be  at  all  crossings  not  public  highways,  1529a,  1625. 

act  preventing  animals  at  large,  no  repeal,  1580, 1532. 

time  in  which  to  fence,  burden  of  proof,  153:M546. 

declaration  as  to  time  to  fence,  1534-1536,  1542, 1544. 

when  road  in  use  six  months,  1534-1589. 

proof  road  being  open  six  months,  1536, 1543, 1546. 

no  duty  to  repair  before  six  months,  1539. 

change  of  ownership,  does  not  extend  time,  1540, 1541 . 

of  depot  grounds,  1574,  1580, 1581. 

in  cities  and  villages,  144, 1580,  1575-1577. 

cattle-guards  in  streets,  1582. 

cattle-guards,  except  at  highway  crossings,  1625. 
meaning  of  words  "on  both  sides  of  its  road,"  1629a. 
mandamus  to  compel,  1629b,  1824. 
notice  to  build,  1816. 

how  served,  1816. 
right  of  owner  to  build  and  recover,  1817-1824,  1531. 

double  value  of  cost  and  damages,  1817, 1820. 

recovery  for  a  part  built,  1818. 
allowing  owner  to  fence,  no  release,  1819. 
release  of  railway  to  fence,  1724. 

by  allowing  for  in  damages,  1719-1723. 

by  contract  with  owner  to,  1725-1727 

road  in  hands  of  receiver,  no  excuse,  1821, 1822. 
must  be  on  line,  1822,  1823. 
evidence  of  contract  to  fence,  731. 
duty  as  to  maintaining,  1518. 
liability  for  injury  to  stock  tor  want  of,  1518. 
of  lessee  of  road,  1628,  1629,  2461,  2462. 
of  lessor  and  lessee,  1602, 1604, 1628,  1629,  2462. 
extent  of  liability,  1584-1591b. 

injury  to  an  employe,  1584, 1585. 

injury  by  agents  and  cars  only,  1586-1588. 

to  crops,  1589. 

liable  for  what  animals,  1590. 
liabttttu  for  injury  to  stock  from  neglect  to  fence. 
allowing  cattle-guard  to  fill  with  snow,  &c,  1591*. 
must  be  out  of  repair  at  place  cattle  get  in,  1591. 
neglect  must  be  the  cause  of  the  injury,  1591,  1672,  1673. 
plaintiff's  negligence  the  cause,  1593. 
who  may  recover  for  neglect,  1584. 
cattle-guards  out  of  repair.  1596. 
neglect  to  repair,  1608,  1609. 
leaving  bars  of  farm  crossing  down,  1608. 
sufficiency  of  gates,  1610. 
insufficiency  of  fence,  1618. 
neglect  to  keep  gates  in  repair,  1623. 

fence  out  of  repair-notice,  1816,  1637,  1640.  1641,  1644,  1730-1732. 
neglect  to  keep  gates  closed,  1630-1634. 
neglect  to  discover  breaches,  1627.  1635,  1636-1643. 

notice  of  breaches  in,  1640-1644. 
time  in  which  to  repair,  1637. 
estoppel  to  deny  duty  to  repair,  1645,  1646 . 
as  to  common  field.  1624. 
proof  of  place  of  killing,  1573. 
injury  at  place  required  to  be  fenced,  1607,  1705. 
place  animals  got  on,  1617,  1618,  1621,  1622. 

killing  at  place  not  required  to  be  fenced,  17;%,  1739,  1740,  1743,  1754,  1756-1758 
evidence  as  to  sufficiency  of  fence,  1600,  1601,  1776. 

its  sufficiency,  1594,  1600 

of  neglect  of  duty,  1599,  1614. 

of  duty  to  fence,  1760-1762. 
declaration  for  killing,  1598,  1690-1718. 
when  liable  for  stock  injured.  1615-1625. 
attorney's  fees,  1591b,  1794-1799. 
animal  lawfully  at  large,  1606. 

animal  at  large,  no  release,  1748,  1749,  17852-1754,  1756-1758. 
\v  hon  no  proof  of  negligence  required,  1603,  1613,  1617,  1619-1623. 
wlit'ii  negligence  inferred,  1605,  1616. 
election  of  remedy,  1612. 
wln'ti  DO  recovery  for  neglect,  1595. 
duty  to  make  cattle  guards,  1611,  1625. 
duty  to  make  suites,  &e.,  at  farm  crossing,  162»i. 
common  law  liability  for  negligence,  otherwise,  1518, 1647,  1648. 
burden  of  proof,  1647,  1648. 
at  place  fenced,  1742, 1743. 


INDEX.  419 

FENCING  TRACK— Continued. 

contributory  negligence  of  plaintiff,  1728-1759. 
tearing  down— penalty,  1807. 
trespass  for  removing  for  road,  1029. 

frightened  animal,  1601. 
PERRY  FRANCHISE, 
by  special  act,  void,  15. 
condemnation  for,  373. 
subject  to  eminent  domain,  242. 
railway  grant  subject  to,  1490. 

FICTITIOUS— increase  of  capital  stock,  87, 1376,  1383. 
FINES— for  what,  163,  165,  168,  175-177,  1522,  2084,  2087,  2100,  2126,  2274.  2444,  2450,  2455, 

2561,  2710,  2712,  2724,  2739,  1472,  1473,  1475,  2118,  2117a,  2771,  2773. 
FIRE. 

element  of  damages,  560,  614,  620,  636,  716, 

from  grass  on  right  of  way,  1800-1806,   2496,   24!)7,   2499-2503,    2508,  2509,  2520,  2522, 

2534-2536,  2542,  2547. 

escape  of,  prima  facie  negligence,  2484,  2510,  2516,  2525,  2535,  2540,  2546. 
but  not  conclusive,  2498,  2525. 
negligence  implied  from,  5M85,  2495. 
burden  of  proof  as  to  negligence.  2485,  2486,  2510. 
unnecessary  amount  of  steam,  2487. 
throwing  sparks  a  great  distance,  2493,  2511. 
evidence  retmtting,  presumption,  2516,  2521,  2533,  2540, -2546. 
use  of  wood  in  coal  burner.  2518. 
care  required  of  railway,  2491,  2492,  2495. 

duty  as  to  appliances,  2503,  2504,  2514-2517,  2523,  2527,  2528,  2537,  2541,  2545. 
railway  not  an  insurer  against,  2498,  2525. 
loss  that  owner  could  have  avoided,  2505,  2506. 
when  injury  too  remote,  2507. 
remote  and  proximate  cause,  2512,  2529-2531. 
declaration,  2526. 
variance,  2532. 
setting  to  grass,  2536. 

limiting  carrier's  liability  as  to  loss  by,  2489,  2441 . 
liability  of  lessee  for  negligence,  2534. 
liability  of  warehouseman  lor  loss  by,  2766. 

care  to  prevent  loss  by,  2766. 
See  NEOLIOKNCK.     GRASS  AND  WEEDS. 
FIRE  INSURANCE  COMPANY. 

when  incoporation  complete,  1156d,  Ilo6e. 

liability  of  stockholders,  2835,  2836,  2341-2844,  2878,  2888. 

FLAGMEN. 

city  may  require  railway  to  keep,  145-147,  1280, 

at  street  crossings,  1455,  1888,  2450. 

right  to  stop  persons  crossing,  2450. 

liability  for  neglect  to  keep,  2454. 

penalty  for  neglect  of  duty,  2450. 

FLOWER  GARDEN— condemnation  of— damages,  £59-661. 
FORCIBLE  ENTRY— lies  for  entry  illegally  on  condemnation,  991, 1068. 
FORECLOSURE. 

decree — sale — payment,  1013. 

effect  on  use  of  road,  1343. 

sale  of  fragment  of  road,  1354. 

distribution  of  proceeds,  1354. 

FOREIGN  CORPORATION— service  of  process  on,  1101,  1125,  1135,  1136,  1140,  1142. 
FOREIGN  RAILWAY.    See  DOMESTIC  CORPORATION. 
FORFEITURES. 

to  prevent  extortion,  etc.,  1428. 

for  neglect  to  fence,  1522. 

starting  train  without  signal,  2087. 

neglect  to  post  minor  law,  2128. 

obstructing  highway,  2119-2121. 

of  charters,  55,  56,  94. 

of  stock,  1192. 

obstructing  vveighmaster,  2811. 
FORMER  RECOVERY— a  bar,  792,  795,  808. 

FORMER  USEFULNESS— restoring  highway,  etc.,  to,  1235,  124-3,  12-W,  1;M5,  1297,  1298. 
FRANCHISE. 

grant  by  special  law,  3. 

subject  to  eminent  domain,  91,  93,  242. 

right  of  way  is  not  a,  274. 

power  of  state  to  regulate  its  exercise,  1429,  1441,  1442. 

may  be  mortgaged,  1467,  1514. 


420  INDEX. 


FRAUD. 

in  issue  of  stock,  1378-1380,  1382. 

in  ordinance  to  take  sidewalk,  828. 

in  proceeding  to  condemn,  1033. 

defense  to  subscription,  1192k. 

release  of,  subscription,  as  to  creditors,  1195,  11%. 

Eurchase  of  stock  by  corporation,  1203, 1203c-1203e. 
n  warehouse  receipts,  ill. 
in  relation  to  tickets,  2556-2561 . 
as  to  contents  of  baggage,  2243,  2256,  2259,  2260. 
in  judgment  against'corporation,  2833. 
as  to  warehouse  receipts,  2793. 
effect  on  lien,  2955. 
action  for  issue  of,  2956. 
FREEHOLD. 

when  involved,  1047. 
when  base,  1230. 

FREEHOLDER— see  468,  470,  485. 
FREIGHT. 

right  to  transport,  1316. 
rules  and  regulations  as  to,  1320. 
charges,  tender,  when,  2567. 
waiver  of  pre-payment,  2568. 
classification  of,  2722. 

FREIGHT  CARS— behind  passenger,  2129. 
FREIGHT  TRAINS. 

new  use  of  street,  157. 

tickets  to  ride  on,  1322,  2298,  2311,  2312. 

carrying  passengers  on,  1157p-1157y,  1158,  1158e. 

evidence  to  show  it  carries  passengers,  2306. 

excluding  passengers  from,  2206. 

need  not  stop  at  all  stations,  2205. 

expulsien  of  passengers  from,  2297,  2311-2316. 

duty  as  to  brakes  and  brakemen,  2234. 
penalty  for  neglect,  2235. 

See  RAILWAYS. 

FREIGHT  YARDS-*condem nation  for,  416. 
FRIGHTENING. 

animals— liability,  1586,  1588,  1601 . 

team,  by  whistle,  175,  2084-2086a. 

by  great  speed,  2153. 
See  ANIMALS. 

GAMING — expulsion  of  passenger  for,  2550. 
GARNISHMENT. 

money  set  apart  to  pay  debts,  1346. 

mortgaged  revenues,  1347. 

mortgaged  earnings,  before  transfer  of  possession,  1353. 

unpaid  stock  by  creditors,  2814,  2821-2826. 
GARDENING— damage  to  business,  659-661. 

GATES  AND  BARS  AT  FARM  CROSSINGS, 
duty  of  railway  to  make,  1518,  1529a,  1630-1634. 
on  part  of  fence,  1609. 
notice  to  make,  1816. 
keeping  in  repair,  1609,  1623. 
leaving  open,  1608.  1634,  1702,  1728,  1729,  1807. 
fastenings  to,  1610. 
right  of  owner  to  make,  1817. 
estoppel  to  deny  duty  to  repair,  1645,  1646. 
See  FARM  CROSSINGS  .    FENCING  TRACKS  . 

GENERAL  ISSUE— traverses  all  grounds  of  recovery,  1711. 
GENERAL  LAWS. 

constitutional  provision,  3,  8,  9,  39,  42. 

applicability  of,  42. 

GOOD  WILL— damage  to— condemnation,  700. 
GOVERNOR. 

signing  petition  to  condemn  by  state,  325 . 

appointment  of  railroad  commissioners,  2625. 

may  remove  them,  2626. 

to  approve  their  bond,  2627. 

may  require  reports  of,  2634. 

approval  of  state's  attorney's  compensation,  2643. 

appointment  of  chief  inspector  of  grain,  2756. 

reports  of  cause  of  railway  accidents  to,  2636. 


INDEX.  421 

GRADE. 

of  grain,  mixing,  104,  2740. 

for  inspection  to  ho  fixed.2796. 

notice  before  change  of,  2796. 
of  streets.—  profile,  evidence,  760,  887. 

liability  for  changing,  809,  810,  813-815,  818-830,  822,  886,  1250. 

by  condemnation,  820. 
of  railways  in  cities,  117,  145. 
See  CITIES  AND  VILLAGES.    DAMAGES. 
GRANTEE. 

action  by,  for  injury  to  land,  422,  423,  1025. 
damages  to,  758,  792. 
ejectment  by,  1001. 

GRASS  AND  WEEDS— on  right  of  way,  negligence,  1687,  1800-1806,  2496,  2497,  2499,  2502, 
2508,  2509,  2520,  2522,  2531-25136,  2542. 

GUARD. 

as  to  fences  and  gates,  1630,  1631,  16,35,  1636,  1638,  1639. 
See  PATROL.    FENCING.  RAILWAYS. 
GUARDIAN. 

party  to  condemn,  325. 
liability  for  stock,  1208. 

HACKMEN— injury  to  baggage,  176. 
HEARING. 

of  condemnation,  497-529. 

setting  of  time,  432. 

in  vacation,  453. 

in  term,  457,  458. 

assessment— laying  road,  451-453. 

HEATING  OF  GRAIN— liability  of  warehouseman,  2766. 
HEIR. 

appeal  by,  1063. 

necessary  party  to  condemn,  424,  425, 

HIGHWAY. 

how  far  a  railway  is.  68-74. 

condemnation  for,  284. 

expediency  of,  374. 

notice  to  land-owner,  450. 

fixing  time  of  hearing,  451. 

continuance  by  justice,  451 . 

petition,  description,  452. 

claim  of  damages,  497,  498. 

damages  must  be  adjusted,  501-504. 

compensation  not  in  benefits,  631,  632. 

measure  of  damages,  645,  698,  706. 

right  to  abandon  proceeding,  957. 

order  for,  necessary  before  taking,  1040. 

appeals,  1038-1047. 

act  construed  with  eminent  domain  act.  706. 

powers  of  commissioners  over,  1247. 

telegraph  in,  232,  241,  351,  1003. 

obstructing  access  to,  677. 

right  of  way,  is  property,  268. 

grant  of  use,  joint--not  exclusive,  1245. 

by  state  construed,  1246. 

power  of  railway  to  build  road  over,  1235,  1278. 
railway  in — damage  to  contiguous  property,  234. 
private  switch,  not  a  highway,  1312. 
HIGHWAY  CROSSINGS. 

change  of  by  railway,  1294,  1294a. 

equitable  interference  with  change,  1294,  1294a. 

change  of  place  of  intersection,  1295a. 

duty  to  make  and  maintain,  1295,  1297,  1518. 

as  to  new  street,  1296. 
restoring  to  former  usefulness,  1297,  1298. 
what  is,  a  crossing,  1583. 
proof  that  road  is  a  public  one,  1903. 
cattle  guards  at,  1625. 
no  fencing  at,  1518. 
duty  as  to  approaches,  2089-2097a. 
notice  to  make  or  repair,  2098. 
neglect  to  make  or  repair,  2099. 

penalty  for,  2100. 
obstructing  witli  cars.  2111. 

liability  under  ordinance,  2113-2117a 

penalty  for,  2119-2121. 


422  INDEX. 

HIGHWAY  CROSSINGS— Confirmed, 
flagmen  at.  1455,  2450,  3453,  3454, 
duty  of  railway  at.  1831-1835. 
warning  boards,  1835,  1836. 
warning  of  danger  at.  3454. 
speed  of  trains  at,  2185,  2188-2191. 
signal  on  approaching,  1827-1 MW. 
for  whose  benefit.  1831-ia35. 
exempting  from  duty,  1829. 
mutual  rights  at,  1898-191)2. 
See  SIGNALS.    STIIEKT  CROSSING. 
HOGS— injury  to,  175,  1518. 

HORSES. 

injury  to,  144,  175. 

injury  to  from  neglect  to  fence.    See  FENCING  TRACK,  AND  ANIMALS 

leading  or  leaving  on  track,  1807. 
HORSE  AND  DUMMY  HAILWAYS. 

See  155,  247-249,  1145,  1265,  1286. 

condemnation,  250,  251. 

HUSBAND— party  to  condemnation  of  wife's  land,  325. 
HYPOTHECATION  OP  STOCK— who  liable  for  stock,  2859. 

ICE. 

along  track,  148 . 

and  water  in  ditches,  1689. 

ILLINOIS  CENTRAL— rights  of  state  protected,  2941 . 
IMAGINARY  DAMAGES. 

not  allowed,  617,  620,  712.  718. 

See  DAMAGES. 
IMPAIK1NG  OBLIGATION  OF  CONTRACTS -laws  held  not,  229,  1210,   1210a-1211a, 

1441,  1519-1521,  243,  244. 
IMPEDING. 

business  of  railway,  2553. 

conspiracy  to,  2554. 
IMPLICATION. 

powers  by,  328. 

to  lay  track  in  city,  1259,  1361. 

agreement  by,  1157b. 

repeal  by,  1530, 1532. 
IMPLIED. 

condition  in  charters,  1435. 

power,  of  railway  as  to  by-laws,  1157. 
of  president,  1189. 

promise  of  stockholders  to  pay  debts,  2880. 
IMPRISONMENT. 

in  county  jail,  2274, 175,  2118,  2126,  3552-2554,  2773. 

in  penitentiary,  2793. 
IMPROVEMENTS. 

dividing  on  farm,  609,  716. 

as  affecting  value  of  land,  655,  665,  671,  672,  716,  752. 

evidence  snowing  value  of,  672. 

by  tenant,  1017. 
INABILITY. 

to  acquire  title,  404. 

to  agree  as  to  compensation,  277,  403,  404, 1213, 1214. 

as  to  damages  by  highway,  503. 
INCIDENTAL  DAMAGES.    See  DAMAGES. 
INCONVENIENCES.    See  DAMAGES. 
INCORPOKATION. 

act  for  cities  not  local,  18 . 

of  railway,  1144. 

of  horse  and  dummy  road,  1145. 

as  a  connecting  line,  1146. 

under  former  laws,  1149-1151. 

articles  of  and  recording,  1152. 

when  complete,  1156-1156a. 

different  under  charter  and  general  law,  115f>f . 

taking  all  stock,  necessary,  I156g. 

substantial  compliance  necessary  to,  1156a-1156d,  1156h. 

who  may  question,  11561. 

shown  by  user,  1169. 

under  laws  of  several  states,  1422,  1423. 

filing  articles  of,  1424. 

certified  copies  evidence,  1434. 


INDEX.  423 


INCORPORATION— dmtinued. 

of  union  depots.  1507-1517. 

articles  of,  1507,  1508. 

certificate  of,  1509. 

what  makes,  1509. 

curing  defects  in.1 463-1466. 

of  elevated  way,,  2942. 

See  CORPORATIONS.    EVIDENCE. 
INCREASE  OP  CAPITAL  STOCK. 

power  and  restrictions,  87,  H79a,  1306,  3941. 

who  may  increase,  1307-13071),  13851). 

who  entitled  to  new  stock,  1307c,  1385c. 

of  elevated  way,  3945. 

See  CAPITAL  STOCK. 
INCREASE. 

of  expenses  of  a  railway  by  a  crossing,  565. 

of  damages— deviation  from  plans,  757. 

of  business  of  road,  336,  349,  363. 

of  indebtedness  of  road,  87. 

of  market  value,  640,  641,  656. 

fictitious — of  debts  of  railway,  1376. 

INDICTMENT. 

of  witness  refusing  to  testify,  2640. 

of  warehouseman.  2776. 

INDIVIDUAL  LIABILITY— of  stockholders.    See  STOCKHOLDERS. 
INDORSEMENT— of  warehouse  receipt.    See  WAREHOUSE  RECEIPT. 
INFORMATION-bill  on,  116. 
INJUNCTION. 

of  building  rival  road,  260,  26t. 

taking  property  without  compensation,  269-372. 

condemnation  for  other  tracks,  373. 

condemnation  for  a  street,  393. 

change  of  plans  after  condemnation,  738. 

depriving  of  sidewalk.  816,  838. 

laying  track  in  street  by  leave  of  city,  846,  848,  854,  855,  850,  858,  863. 
without  leave,  856. 

damaging  of  property,  850. 

till  compensation  paid,  190.  197. 

condemnation  by  horse  railway,  247. 

imposition  of  new  burdens,  883. 

of  proceeding,  for  delay  in  paying  condemnation,  960. 

fraudulent  condemnation,  1033. 

collection  of  subscription,  11921. 

improper  use  of  street,  1290-1393,  1394a. 

removal  of  connecting  track,  1308,  2620. 

of  consolidation,  1411. 

making  farm  crossing,  1529. 

INSPECTION  OP  GRAIN, 
special  legislation,  32. 
delegation  of  power,  103,  113,  2757. 
laws' to  regulate,  113. 
Chicago  act,  valid,  2736. 
required  in  class  A  warehouses,  2740. 
before  delivery  from,  2740. 
rights  of  owner  dissatisfied  with,  2774. 
grades  to  be  established,  3796. 

notice  of  change  in,  2796 . 
who  to  fix  fees  of,  3800. 
charges  of  -a  lien  on  grain,  2800. 
rules  and  regulations  for,  3756,  3810. 
salaries  and  expenses,  how  paid,  3799. 
no  mixing  of  grades  in  store,  2796. 
committee  of  appeals,  2797. 
appeals  from  decision  of  inspector,  2798. 

expenses  of,  how  paid,  2756,  2158. 
before  receipt  in  warehouse,  3769. 

INSPECTOR  OP  GRAIN. 

appointment  and  qualification,  2756,  2760. 

rules  and  regulations  for,  3756. 

rates  of  charges  regulated,  3756. 

compensation  of  and  fissistants,  275'J. 

registrar  and  assistants,  2756. 

powers  of  railroad  commissioners  over,  2756 

removal  from  office,  2756. 

expenses  of,  how  paid,  2756,  2758. 

suit  on  bond  of,  2761-2763. 


424  INDEX. 

INSPECTOR  OF  GEAIN— Cojitinued. 

right  to  inspect  grain  in  warehouses,  2768. 

scales  in  warehouse,  2768. 
right  to  examine  and  test  scales.  2766,  2768. 
penalty  for  assuming  to  act  as,  8771,  2772. 
appointed  by  board  of  trade,  2770. 
where  any  one  may  act  as,  2772. 
penalty  for  misconduct  of,  2773. 
improperly  influencing,  2773. 
See  CHIEF  INSPECTOR. 

INSTRUCTIONS  TO  JURY. 

orally  as  to  form  of  report,  467. 

in  condemnation,  4%,  552,  612,  664,  736,  755,  894,  895. 

as  to  fencing  road,  1537.  1543. 

as  to  comparative  negligence,  2040,  2(>41,  2045,  2046,  2051,  2057,  2058,  20M),  20(il,  206=5, 

2065,  2068,  2072-2075,  2080. 
ignoring  comparative  negligence,  2202. 
whether  speed  caused  the  injury,  2201 . 

INSURANCE  COMPANIES. 

liability  of  stockholders,  1210c,  1210d,  1211.  2818. 
to  amount  of  stock,  2835    2836,  2840,  2844. 

to  what  companies,  law  applies,  2841. 

law  construed,  2841-2844. 

who  may  sue  to  enforce,  2888. 

sufficiency  of  declaration,  2890. 

service  of  process  on,  1117. 
INTEREST. 

penalty  on  taxes  is  not,  21. 

on  special  assessment,  22. 
•on  judgment  of  condemnation,  !'43-952. 

on  railway  loan,  who  may  fix,  1184. 

on  cost  of  fencing,  1817. 

on  stockholder's  double  liability,  2910. 

on  amount  received  on  grain  improperly  sold,  2974. 

of  juror,  470. 

of  director  in  contract,  1131, 1176a. 

in  land,  to  make  a  necessary  party,  431 . 

INTER-STATE  COMMERCE. 

laws,  whether  interfering  with,  164,  2658-2664a. 

limiting  charges,  84. 

Texas  cattle,  2149-2151 . 

stopping  at  county  seats,  2224. 
INTERLOCUTORY— automatic  signals,  2726,  2727. 

INTERSECTION. 

of  between  railways,  256c-256e. 
facilities  to  be  afforded  for,  256c. 
of  two  railways,  554-580. 
selection  of  place  of,  1225. 
of  streets  and  highways,  1235, 1295b. 
no  leave  necessary,  126],  1261  a. 

JARRING— of  building  by  railroad  trains,  902. 
JEWELRY— as  baggage,  2252,2259. 
JOINDER. 

in  appeal,  1039. 

of  actions,  2105,  2148. 

of  parties  defendant,  1091. 

creditor's  bill,  2830,  2831. 
JOINT  USE. 

of  street  by  railway  and  public,  139,  1283. 

of  highway  by,  1245. 

condemnation  for,  247,  250. 

of  railway  tracks,  1264. 
JUDGE . 

petition  to  condemn,  to  in  vacation,  325,  1508. 
when  presented  in  vacation,  432. 

direct  summons  and  publication,  432. 

has  same  power  as  in  term  time,  435. 

naming  jurors  to  fill  panel,  482. 
JUDGMENT. 

necessary  to  a  condemnation,  209. 

divests  the  title,  205,  1005,  1007,  1008. 

description  of  the  land,  395. 

binds  parties  only,  425-429. 

must  show  notice,  440. 


INDEX.  425 


JUDGMENT-CtrnMnwed. 
in  vacation,  456. 

on  award  of  compensation,  1027. 
on  report  -form  and  effect,  924,  936,  930,  941. 
bar  to  second  suit,  772,  793-795. 

effect  collaterally,  932,  933,  940,  941,  1023,  1029,  1031,  1034. 
a  part  of  the  record,  931, 

award  of  execution,  925,  927-929.  934,  936,  946. 
should  be  conditional,  937,  937,  939. 
when  right  under,  vests,  933-938. 
interest  on,  when,  943-952. 
right  to  abandon  after,  939. 
reversal— effect  on  possession,  988. 
as  to  party  entitled  to  money,  1011, 1014. 
directing  payment  to  county  treasurer,  1014. 
no  right  of  entry  before  payment,  1024. 
with  payment,  a  justification,  924,  937. 
acquiescence  in,  1032. 
when  final,  1061. 
record  of,  1070. 

for  penalty — bar  to  second  suit,  2109. 
attacking  for  fraud,  by  stockholder,  2833 . 
JUDICIAL. 

act— fixing  compensation  is,  206. 
proceeding,  necessary  to  condemn,  209. 

condemnation  is,  326,  433,  435. 
questions— 299,  300,  383,  391,  393,  1444. 
notice,  1168. 

JUNCTION  OF  RAIL  WAYS, 
duty  to  unite  in  forming,  1304. 
accommodation  at,  2130. 
receipt  and  delivery  of  grain  at,  2634. 
See  RAILWAYS. 
JURISDICTION. 

of  streets  and  roads,  136,  147,  1380. 

of  supreme  court,  1057. 

chancery,  1291,  1307. 

of  county  court,  no  equitable  in  condemnation,  400. 

of  officers  on  trains,  &c.,  178. 

to  condemn  land,  395-401. 

what  courts  have,  399. 

how  conferred  and  shown,  396-398,  325. 

what  petition  to  show,  395,  401. 

of  the  person,  434,  442,  458. 

depe_nds  on  notice,  442,  458. 

service  less  than  ten  days,  449. 

of  tenants  in  common,  428,  429. 

appearance  gives  of  person,  398,  480. 

prerequisites  to,  488,  411. 

of  cross-petition,  778. 

involved  on  appeal,  1042,  1043. 

of  justice  of  the  peace.  451 . 

error  does  not  affect,  488. 
JURY. 

act  relating  to  Chicago,  13. 

not  necessary  to  condemn  under  the  old  constitution,  184. 

right  to  trial  by  under  old  constitution,  207,  187,  278,  279. 

under  new,  91,  214.  215,  278-288,  303. 
on  appeal  under  prior  laws,  211,  280,  383. 
parties  may  waive,  388. 
condemnation  for  state  house  ground,  286. 
of  less  than  twelve,  287. 
selection,  by  justice  of  the  peace,  450. 

in  vacation,  468. 

•oen  ire— names  on  slips,  468. 

statute  construed,  469. 

of  second,  472. 
aclec  ion  of. 

filling  panel,  482. 

challenge  of  array,  457. 

array,  when  not  fair,  470. 

challenge  of,  482. 

competency  of  juror,  484. 

must  appear  in  record,  485. 

evidence  of  selection  by  justice,  471. 

where  several  owners,  454,  460.  463 
oath  of,  486. 
-32 


426  INDEX. 


JURY— Confirmed. 

swearing— waiver  of  objection,  487,  488. 

questions  before,  371.  885,  517-519,  534,  720. 

evidence  not  proper  for.  528 . 

view  of  premises,  489-496. 

not  bound  by  opinions  of  witnesses,  745-749. 

may  act  on  their  own  view,  744. 

averaging  the  evidence,  761,  762. 

adding  and  dividing,  762. 

parol  evidence  to  show  basis  adopted,  1029. 

amending  verdict,  467. 

necessary  in  condemning  for  highway,  284,  285, 

trial  by,  in  prosecutions,  1472,  2710. 
JUSTICE  OF  THE  PEACE. 

jurisdiction  in  actions  for  injury  to  animals,  144. 
in  suits  for  penalties,  2106,  2126,  2599. 
uniting  causes  to  defeat,  2105. 

filing  transcript  of,  1091 . 

district  of,  17. 

condemnation  for  highway,  450,  452,  471. 
selection  of  jury  by,  482. 
error  in  swearing  jury,  488. 

summons  and  service,  1115. 

JUSTIFICATION-  -when  condemnation  is,  924,  932,  935. 
LABOR  AND  LABORER. 

lien  for  labor,  1073,  1076. 

when  under  contract,  1085. 
LADIES. 

car,  1157t. 

waiting-room,  1158b,  1504,  1336. 
LANDING. 

for  water  craft— no  condemnation,  1489. 

connecting  with  railway,  1275. 
LANDLORD  AND  TENANT. 

apportionment  of  compensation  between,  1022,  1023. 

condemnation  does  not  release  tenant,  1021. 

LARCENY— of  railway— punishable,  169, 170. 
LATERAL  ROAD. 

as  to  length  of,  329. 

condemnation  for,  330. 

not  for  private  use,  353.  354. 

charter  must  authorize,  363. 
LATERAL  SUPPORT— of  the  soil,  829,  &30. 
LAW. 

questions  of,  1158g,  1158h,  1568,  1857,  1860-1864. 

when  remedy  is  at,  1401 . 

what  governs,  309,  312,  315-318,  320. 

LAY-OVER  TICKET— holder  bound  by  conditions,  2318. 
LEAKAGE  -service  to  make  good,  2562. 
LEAPING— from  moving  train,  2211,  2215-2223. 

LEASE. 

power  of  railway  to,  1172,  1403. 

condemnation  does  not  extinguish,  1021. 

unauthorized — no  relese  of  subscription,  1482. 

remedy  of  stockholder  for  an  unlawful,  1483. 

of  roads  of  other  states,  1476. 

power  to  contract  for,  1484. 

of  rolling  stock,  till  paid  for,  1493,  1494. 

of  tracks  in  street,  1264. 

contract  held  not  a,  1313, 1404. 

legislation  necessary  for  lease  to  foreign  company,  1414,  1415. 
LEASEHOLD. 

subject  to  condemnation,  275. 

protected,  272. 

damage  to  entirety,  659. 

apportionment  of  compensation,  1022. 

LEGAL  TITLE-when  passes  as  to  stock,  1200f,  1201-1201b. 
LEGISLATION. 

validating  incorporation,  1413-1466. 

as  to  railway,  applies  to  prior  companies,  1434. 
LEGISLATIVE. 

control  over  union  depots,  1515. 

discretion,  1523. 


INDEX.  427 


LEGISLATIVE— Continued. 

grant,  in  restraint  of  eminent  domain,  229. 
function,  229. 
powers,  304. 

embraces  eminent  domain,  304, 219. 

when  conferred,  219. 
questions,  373,  376-378,  381,  391,  394. 
recognition  of  corporate  rights,  345. 

of  consolidation,  1402. 

of  power  to  build  road  in  city,  1269, 1269. 

LEGISLATURE. 

power  to  fix  individual  liability  of  stockholders,  1210. 
reservation  of  power  over  corporation,  1210a,  1210c. 
control  over  railways,  1429-1458 . 
power  to  fix  rates  of  charges,  1428 . 
approval  of  route,  etc..  of  railway,  335. 
constitution  a  limitation  on,  180,  219,  220,  40,  46. 
may  delegate  powers,  200. 
L  K SS K  K . 

condemnation,  damage  to  future  profits,  647,  660,  661. 

payment  to  before  taking,  1017,  1018. 

compensation  for  improvements,  1017-1018. 

when  a  necessary  party,  272,  431. 

LESSEE  OF  RAILWAY. 

must  conform  to  charter  of  lessor,  1478. 

lessor  liable  for  acts  of,  1481,  1217-1219a,  2459,  2464. 

liable  for  injury  to  stock,  for  want  of  fence,  1602,  1604,  1028, 1629. 

notice  to  as  to  fencing,  1816. 

duty  as  to  flagmen,  1888. 

treated  same  as  the  corporation,  2457. 

liable  for  acts  of  those  using  road,  2474. 

liable  for  defects  in  road,  2477,  2478. 

for  escape  of  fire,  2484. 

for  grass  on  right  of  way,  2534. 
examination  of  by  railroad  commissioners,  2638. 
penalty  for  neglect  to  report,  2641 
may  purchase  foreign  roads,  1426. 
may  condemn  in  lessor's  name,  267. 
penalty  as  to,  of  warehouse,  2775,  2776. 

LEVEE— action  for  converting  street  into,  823,  824. 

LEX  LOCI-governs  as  to  carrier's  liability,  2379,  2406,  3437. 

LICENSE. 

of  county  board  to  make  telegraph  poles  in  highway,  351. 

no  protection  against  action,  351 . 
structure  on  land  by,  665. 
to  lay  track  in  street,  no  defense  to  action,  849. 

where  city  has  but  an  easement,  849. 
presumption  of,  993. 
revocation  of,  for  right  of  way,  997. 
as  to  speed  of  train,  ordinance  is  not,  2190. 
of  warehouseman — revoking,  2737. 

limitation  as  to  re-licensing,  2737. 

of  class  A,  how  obtained,  2737. 

revocation,  2737,  2766. 

renewal,  2739. 
LIEN. 

of  carrier,  168. 

on  railroad,  1073,  1096. 

for  what  given,  1073. 

as  against  mortgage  and  other  liens,  1073. 

of  what  date,  1073. 

where  it  is  given,  1074-1080. 

in  whose  favor,  1081. 

does  not  extend  beyond  sub-contractor,  1082. 

petition,  what  to  show,  1083. 

release  of,  by  contractor,  1084. 

relation  of  parties,  1085. 

not  to  exceed  contract  price,  1081. 

notice  of,  1087-1089. 

service  of,  1087. 
list  of  persons  claiming,  1090. 
action  to  enforce,  1091. 
petition  to  enforce,  1093. 
attorney's  fee  taxed,  1092. 
limitation  of  action,  1094, 1095. 
on  sale  of  rolling  stock,  1493. 


428  INDEX. 

LIEN— Continued. 

of  warehouse  for  storage,  2748-2751,  2754,  2755. 

purchaser  of  receipt,  takes  subject  to,  2748a. 

when  lost,  2749-2751,  2991 . 
by  agreement,  2752- 

on  grain  for  charges,  2774,  2954,  2958. 
of  creditor  on  stockholder's  liability,  2903. 

not  lost  by  issue  of  fraudulent  receipt,  2955. 

on  stock,  1203a,  1204. 

of  warehouse,  not  on  goods  of  another,  2961 . 
warehouse  receipt,  gives  none  to  holder,  2965. 
priority  of,  1073,  1079,  1081. 

LIGHTING  DEPOT.     See  DEPOTS  AND  GROUND. 
LIMITATION. 

of  action,  to  enforce  municipal  subscription,  25. 
Qfor  penalty— extortion,  97,  2705,  2715. 

to  enforce  lien,  1073,  1077,  1079. 

for  penalty,  2147a. 

Texas  cattle,  2148 . 

against  stockholders,  2915-2918. 
of  time  for  organizing  under  old  charters,  58. 

for  commencing  and  completing  road,  1462. 
on  issue  of  bonds  and  stock,  87-90. 

increase  of  capital  stock,  87-90,  1206. 
of  rates  and  charges,  68. 
of  right  to  lay  track  in  streets,  118. 
of  carrier's  liability,  162,  2339-2444. 
of  legislature  as  to  eminent  domain,  180,  183. 
of  power  of  eminent  domain,  199,  219,  220,  390. 
as  to  place  of  side  track,  352. 
as  to  conditional  sales  of  rolling  stock,  1493. 
on  right  to  select  route  in  city,  1257,  1258,  1262a. 
on  right  granted  by  city,  1264-1266. 

to  enter  city,  1268,  1288. 
on  police  power,  1437,  1439,  1445. 
of  warehouseman's  liability,  2744. 
on  transfers  of  stock,  1200. 

LIMITED  USE -is  property,  562. 
LOCAL  LAWS. 

how  far  prohibited,  3. 

effect  of  prohibition,  9. 

depending  on  local  option,  10. 

limited  in  object  to  which  it  applies,  11. 

laws  held  local  or  not,  11-38. 

not  prohibited  by  old  constitution,  29. 

LOCAL  OPTION— laws  dependent  on,  10. 
LOCATION. 

of  land  as  affecting  value,  751. 

of  highway  and  streets— compensation,  497-500,  645. 
of  depot,  opinion  as  to  benefits,  733. 
LOCATION  OF  RAILWAY, 
power  given,  1220, 1223,  1288. 
no  power  to  change,  1225a. 
benefits  from  not  considered,  582,  713. 
benefits  from,  of  a  park,  591 . 
change  after  municipal  aid,  1422. 
of  points  of  intersection,  1225. 
in  cities. 

power  of  city  to  regulate,  117-120,  125,  128, 136,  137,  1258-1270, 1288. 
is  subject  to  assent  of  city,  118-120,  1257. 
city's  assent,  a  limitation  of  power.  118,  1257, 1270, 1288. 
not  till  exercised,  133,  1288. 

delegation  of  city,  power,  120-123, 132, 1258,  1258a. 
injunction,  till  city  assents,  124. 
how  obtained,  118,  119, 126-127. 
petition  for  leave,  151-161. 
sufficiency  of  ordinance  for,  121,  131. 
railway  alone  can  locate.  128. 

may  select  route  without  assent,  118,  128-130,  1257,  1261,  1261a,  1288. 
ordinance  not  necessary  for,  359. 
limitation  as  to  time  for,  332. 
See  RAILWAYS.    SELECTION. 
MACHINE  SHOPS, 
injury  to,  172, 174. 
condemnation  for,  1213. 


INDEX.  429 


MALE  ANIMALS— at  largo,  174V. 
MALICIOUS  MISCHIEF. 

to  baggage,  176. 

attempts  to  commit,  173. 

abandoning  locomotive,  2552. 

obstructing  business,  2553. 
MANAGERS.    See  DIRECTORS. 
MANDAMUS. 

to  compel  appointment  of  commissioners,  473,  477,  481. 

to  pay  compensation,  927,  954,  956,  959. 

to  compel  condemnation,  9%. 

to  compel  fencing  of  track,  162%,  1824. 

in  respect  to  weighing  grain  in  bulk,  2730. 

to  compel  collection  of  subscription,  2829. 
MANUFACTORIES— connections  with,  137,  1275. 
MAPS  OF  ROAD— evidence  on  condemnation,  734. 
MARKET  VALUE. 

of  land  taken.  604,  610,  624,  626,  644,  662,  693. 

uses  and  capabilities  as  affecting,  610. 

instructions  as  to,  664.  678. 

not  confined  to  a  particular  use,  671,  679. 

evidence  to  show,  674,  694-696,  713. 
to  enhance,  671. 
to  show  uses,  etc.,  674,  682-684.  713. 

special  value  above,  669,  670,  678,  679. 

when  property  has  no  such  value.  642,  643,  657,  658,  681,  684. 

from  location  and  advantages,  713,  719,  720. 

depreciation  in,  899.    See  DAMAGES. 

difference  in— measure,  685,  709,  710. 

See  EVIDENCE.    DAMAGES. 

MARRIED  WOMAN— condemnation  of  property  of,  325. 
MATERIALS. 

condemnation  of,  182,  1214. 

taken  by  contractor,  1215. 

liability  for  taking,  705, 1221. 

lien  on  road  for,  1073,  1079. 
MAXIMUM  CHARGES.    See  CHARGES. 
MEETING. 

fixing  time,  commissioners  to  assess  damages,  479. 

of  consolidated  railway  company  of  several  states,  1419. 

of  stockholders.    See  STOCKHOLDERS. 
MERCHANDIZE— not  included  in  baggage,  2252. 
MILITARY  CONTROL. 

as  an  excuse  for  refusing  freights,  2580,  2589,  2592,  2593. 

no  excuse  for  delay  in  transporting,  2580,  2585,  2592,  2598. 
MILL — as  enhancing  value  of  lot,  752. 
MINE— in  land  as  affecting  value,  610. 

MINORITY  REPRESENTATION-in  election  of  directors,  59, 1459. 
MINORS. 

climbing  on  cars.  2122-2126. 
prosecution  for,  2125. 
penalty  for,  2126. 

as  otherwise  affecting  negligence,  2123,  2124. 

MISCONDUCT.    See  DISORDERLY  CONDUCT.    PASSENGERS.    INSPECTORS. 
MISDEMEANORS. 

stoning  cars,  2118. 

freight  cars  behind  passenger,  2129. 

on  trains  and  boats,  2551. 

witness  refusing  to  testify,  2640. 

misconduct  of  inspector,  2773. 

MIXING  GRAIN— different  grades,  2740,  2766,  2767. 
MOB  VIOLENCE— as  an  excuse  for  delay  by  carrier,  2586,  2587,  2594. 
MONEY. 

compensation  to  be  in,  613,  645. 

loaned — no  lien  on  railway,  1074. 

set  apart— not  subject  to  garnishment,  1346. 

as  baggage,  2242,  2243,  2247,  2251. 

when  action  lies  for,  had,  2!J8,H. 
MONOPOLY— presumption  against,  258. 
MORTGAGE  BY  RAILWAYS. 

of  real  estate  passes  rolling  stock,  66. 

of  after  acquired  property,  65,  1356. 


430  INDEX. 


MORTGAGE  BY  RAILWAYS— Cimt.inued. 
to  secure  bonds,  1338,  1344,  1467-1470,  2941 . 

vore  and  recording  order  for,  1338. 

denying  validity,  1339. 

defenses,  1339,  1359. 

statute  authority  necessary,  1342. 

estoppel  to  deny  validity,  1349,  1363. 

order  for  to  be  recorded,  1467,  1470. 

what  necessary  to  validity,  1361, 1467,  1468. 

how  and  by  whom  executed.  1467,  1468. 
does  not  pass  municipal  subscription,  1352. 
by  union  depots,  1514. 
chattel— acknowledgement,  1366. 
of  consolidated  company,  1350. 

validity  of  consolidation,  not  open,  1349. 
title  necessary  to  support,  1355. 
proof  of  authority  to  make.  1357. 
by  consent  of  all  stockholders  good,  1360. 

substantial  compliance  with  statute,  1360. 
priority  between,  1355. 
lien  for  labor,  priorities,  1073. 
when  property  not  subject  to  execution,  1345. 

liable  to  garnishment,  1346,  1347. 
earnings,  when  liable  to,  1353. 
sale  ae  an  entirety— no  redemption,  64. 

costs  of  subsequent  liens,  1341. 

of  part  only,  improper,  1354. 

proper  decree,  1354. 
rights  of  purchaser,  1343. 
change  of  possession  sufficient,  1340,  1341. 
trustee  managing  road,  1351. 

liable  while  operating,  1348. 
mortgagee  in  possession  liable  for  fire,  2484, 
bonds  convertible  into  stock,  1359. 
power  of  sale— transfer  under,  1341. 

MORTGAGED  PROPERTY— subject  to  condemnation,  1015. 

MUNICIPAL  CORPORATIONS, 
subject  to  legislative  control,  57 . 
power  to  condemn,  325,  327. 

preference  between,  394. 

over  streets,  846-848,  864,  1250. 

when  fee  is  in,  847-849. 

to  construct  and  repair  bridge,  1244. 
grant  of  use  of  street,  when  no  protection,  849-851. 

injury  to  access  to  lots,  831,  834,  841. 

assent  of  lot-owners,  1235. 

of  use  of  steam  power  in  street,  1250. 

of  railway  in  street,  1250. 

binds  public  and  city,  1253,  1254,  1260. 

how  made,  1254,  1255. 

passes  to  successor,  1256. 

sufficiency  of  ordinance,  1261  h. 

who  may  question,  1252. 
streets— fee  vested  in,  1248, 1249. 

power  of  city  to  regulate,  1258. 

delegation  of  power,  1258, 1258a,  1262. 

powers  as  a  limitation  on  railway,  t262a,  1271,  1272. 

assent  of  lot-owners,  1263, 1263a.. 
service  of  process  on,  1113. 
delegation  of  police  power  to,  1438. 
property  of,  exempt  from  condemnation,  1512. 
liability.    See  CITIES  AND  VILLAGES. 

MUNICIPAL  DONATION. 

effect  of  consolidation  on.  1405a. 

change  of  location  after,  1422. 
MUNICIPAL  SUBSCRIPTION. 

limitation  act,  25. 

not  under  eminent  domain,  187. 

does  not  pass  by  mortgage,  1352. 

passes  to  consolidated  company,  1387,  1416. 

not  validated  by  legislation,  1463. 
MURDER— resulting  from  willful  injury,  171. 
tfAME. 

of  land-owner  in  notice,  445. 

in  what  to  file  petition,  402. 

in  what,  to  sue  consolidated  railway,  1395. 


INDEX.  431 

NAVIGABLE  STREAM. 

bridges  over,  1235,  1244-1344b. 

water-craft  over,  by  railway,  1488. 
no  condemnation  of  landing,  1489. 

railway  to  receive  and  deliver  at  intersections,  2634. 
NAVIGATION— obstructing,  1335,  1344-1344b. 
NECESSITY. 

eminent  domain  founded  on,  238. 

for  exercise  of,  228. 

must  be  pressing,  297. 

reasons  tor,  not  material,  <J67. 

fixes  amount  of  land  taken,  366-372. 

who  may  determine,  373-394. 

essential  to  exercise  of  right,  384 . 

delegation  of  power  to  decide,  379,  380. 
NEGATIVE  EVIDENCE.    See  AFFIRMATIVE  EVIDENCE. 
NEGATIVING  EXCEPTIONS.     See  DECLARATION. 

NEGLIGENCE. 

as  to  culverts.  1236a-1236c. 

as  to  drains,  879-882. 

in  construction  of  road,  878. 

criminal,  liability,  166,  167. 

defective  floor  in  platform,  1500. 

obstructing  passage  to  eating  house,  1500a. 

in  passing  over  depot  ground,  1502. 

allowing  cattle  guards  to  fill  up,  1591a. 

cattle  guards  out  of  repair,  1596,  1611,  1625. 

neglect  to  repair.  1608,  1609. 

allowing  fence,  &c.,  to  get  out  of  repair,  1610,  1618,  1623,  1626. 

neglect  to  keep  gates  closed,  1630-1634. 

to  discover  breaches,  1635-1643. 
leaving  gate  or  bars  open,  173S,  1739. 
ice  and  water  in  ditches,  1689. 
defective  repair  of  fence.  1731,  1732. 
allowing  grass,  &c.,  to  obstruct  view,  1687. 
failing  to' stop  train,  1688. 

in  management  and  running  train,  evidence,  1766. 
speed  of  train,  2153,  2154,  2158-216:!,  2169,  2170-2183,  2186,  3187,  3189-3191. 

as  evidence  of  negligence,  1685,  3198,  3199,  3000,  3194. 

in  excess  of  ordinance,  2152-2203. 

in  absence  of  ordinance,  2169-2203,  2197. 

as  negligence,  1878-1880,  1883. 

regulation  as  to,  1453. 

at  road  crossing,  2188. 
whether  speed  is,  a  question  of  fact,  2175,  2177,  2183,  2192. 

must  have  caused  the  injury,  2163. 

instruction  ignoring  whether  the  cause,  2201. 
starting  train  suddenly,  2226,  2227. 

without  signal,  2087-2088a. 
want  of  brakeman,  2233,  2235. 
failure  to  apply  brakes,  2233,  2235. 
explosion  of  boiler,  2078. 
si(/naf.s  on  approaching  crossing,  failure  to  give,  1889, 1890,  2185, 1827. 

whether  negligence,  question  of  fact,  1855,  1856, 1862-1864, 1867, 1870-1873, 1882, 1930. 

need  not  apprise,  1874,  1878,  1879,  1880. 

must  have  caused  tne  injury,  1836,  1S37,  1810-1849,  1866,  1869,  1870. 

when  not  required,  1856,   1883,  1887. 

ordinance  requiring,  1888. 

evidence  relating  to,  1904,  1905. 

burden  of  proof^  1838,  1839. 

at  other  places  than  crossings,  1883, 1887. 
in  escape  of  fire,  2484-2518. 

Itriina  fncie  negligence,  2484,  2510,  2516,  2525,  2535,  25-10,  2546. 
but  not  conclusive,  2498,  2525. 

when  inferred  or  presumed,  2486,  3185,  2495,  2498. 

burden  of  proof,  2486,  2487. 

use  of  too  much  steam,  2488,  2494,  2504. 

wood  in  coal  burner,  2518. 

amount  of  sparks  emitted,  2511. 

rebutting  presumption,  2516,  35 Jl,  3533,  2510,  2516. 

failure  to  employ  best  appliances,  2-192,  2503,  2r>0l. 

grass  on  right  of  way,  as  evidence,  2496,  3197,  3-199-2303,  2508,  2509,  2520,  2532,  2531- 
2536,  2542. 

See,  also,  FIRE. 

railway  may  not  contract  against  gross,  2340. 
proof  of  delay  does  not  show,  2417. 
of  owner  of  warehouse  receipt,  2971. 


432  INDEX. 

NEGLIGENCE— Continued. 

•injury  to  animals  b//,  no  fencing  involved. 
common  law  liability,  1612. 
when  nniBt  be  proved.  1605,  1648-1653.  1674, 1676. 
no  liability  if  no  negligence,  1679, 1680. 
burden  of  proof  on  plaintiff,  1647, 1669. 

gross  negligence,  1664-1668, 1670,  1671,  1673,  1675,  1676,  1678,  1734,  1740,  1741. 
when  ordinary  care  could  have  prevented  injury,  1665-16H8,  1081,  1682,  1684,  1733, 

1742,  1743,  1744,  2012. 
injury  from  neglect  to  fence,  1518. 

need  not  be  shown,'  1594,  1595,  1599, 1603,  1613,  1619,  1620-1622,  1713,  1754. 
will  be  inferred,  1605,  1613,  1616,  1619. 
evidence  as  to  fencing,  1600. 
conneetUm  of  the  negligence  with  injury. 

neglect  to  fence  must  have  caused  the  injury,  1593. 

instruction  ignoring  cause  of  injury,  2201. 

failure  to  give  signal  at  crossing,  1836-1839,  1929,  1850-1856,  1858-1862,  1864,  1866- 

1871. 

neglect  to  fence.  1591,  1592,  1606,  1672,  1673,  1681. 
burden  of  proof,  1838,  ia39. 

See  CAUSE  OF  INJURY.    CONNECTION  OF  NEGLECT. 
contributory  of  plaintiff . 
leaving  bars  down,  1608. 
in  passing  over  depot  grounds,  1502. 
when  a  bar,  1593,  1671. 
of  passenger,  when  a  bar,  2211,  2215-2223. 

leaping  from  car  in  motion,  2211,  2220,  2222,  2215-2219. 

getting  on  while  in  motion,  2221,  2223. 
of  plaintiff,  brakeman,  2230,  2232. 

when  a  bar,  2448. 
of  owner  of  stock  injured,  1728-1759. 

allowing  to  go  on  track.  1733-1735,  1739,  1740. 

horses  left  blindfolded  in  field,  1737,  1738. 

negligence  in  allowing  at  large,  174b-1759,  2083. 1784. 
what  is  in  plaintiff,  1746,  1747. 

walking  on  track,  1810,  1811,  1813,  1814. 

as  to  child  injured,  1952,  1970,  1606,  2124. 

of  traveler  at  a  crossing,  1898-1902,  1906-1924,  1&55-1867. 

plaintiff— no  signal,  1851,  1865,  1869,  1830-1835,  1868,  1870. 
a  question  of  fact,  1745. 
burden  on  defendant,  to  show,  2079. 

as  a  defense,  2158,  2164,  2183a,  2184,  2193,  2202,  2489,  2490,  2539,  2505,  2506,  1921-1925, 
1927,  1928,  1935,  1951,  19IJ5,  1969, 1836-1867, 1872, 1881,  1882, 1896,  1906-1920,  1956,2124. 

gross  negligence  a  bar,  1844,  1845,  1849-1858,  1936,  1940. 

defective  sidewalk,  1938. 

cause  of  injury,  1940,  1941,  1946,  1947. 

when  extra  care  necessary,  1942,  1948,  2538. 

speed  of  train,  2158, 2159,  2183a,  2184,  2202. 

escape  of  fire,  2489,  2490,  2531. 
ignoring  plaintiffs  care  in  instruction,  2067. 

comparative. 

negligence,  1971-2081. 

weighing  degrees  of,  1971,  1978,  1993,  2036. 

plaintiff's  slight    defendant's  gross,  1972-1976,  1979, 1980,  1983, 1984,  1985, 1990-1996, 

2003,  2017-2021,  2023-2023.  2030-2032, 2034-2039,  2042-2045,  2500 -2502,  250S. 
plaintiff's  gross— no  recovery,  1974,  1981,  2004-2011,  2015,  2026,  2071,  2073. 
applied  to  case  of  tumbling-rod,  1977. 
when  the  rule  applies,  1986, 1988. 

when  both  equally  in  fault,  1989, 1998-2002,  2014, 2016,  2022,  2027,  2028,  2037,  2060. 
preponderance  not  enough,  2033,  2040,  2041,  2046,  2055,  2058,  2069. 
instructions  as  to,  1982, 1987,  2025,  2026,  2029,  2030. 
elements  of  comparison  in  instructions,  1982,  1987,  2061,  2065,  2066. 
instructions  ignoring,  2202,  2072,  2074,  2509. 
plaintiff  need  not  be  without  fault,  2065,  2075,  2077. 
plaintiff's  negligence,  will  not  excuse  gross  negligence,  2083. 
ordinary  care  or  plaintiff,  2076. 
liability  for  willful  injury,  17:56,  1741,  1742,  1814. 
when  plaintiff  relieved  from  negligence,  2048. 

NEGOTIABILITY— of  warehouse  receipts,  2777-2792,  2969-2971,  2982,  3005,  3011,  3012-3018. 

NEW  BURDEN. 

compensation  for,  232,  239,  241,  847,  849. 

when  fee  is  in  city,  848. 

on  right  of  way  in  street— injunction,  882. 
NEW  REMEDY. 

for  damage  from  entry,  235 

for  damage  to^contiguous  land,  809-866. 


INDEX.  433 


NEW  TRIAL, 
in  vacation,  435. 

excessive  damages,  541-544,  552a. 
presumption  in  favor  of  judgment,  545,  547. 
case  of  personal  view,  546,  551. 
on  the  evidence.  541-552a. 
NEW  USE. 

taking  property  for,  253. 
of  street,  369. 
of  track  in  street,  1289. 
NOMINAL  DAMAGES. 

when  on  condemnation,  763. 
expulsion  of  passenger,  2289,  2330. 
NON-RESIDENT, 
directors,  67. 
land-owner,  325. 

notice  to,  432. 

payment  to  county  treasurer,  1516. 
NOTICE. 

before  condemnation,  186,  432. 
of  condemnation  for  street,  437. 

not  necessary  unless  law  requires,  438. 
if  parties  appear,  439. 

is  essential,  440,  442. 

when  record  must  show,  440. 

necessary  to  jurisdiction,  442. 
of  condemnation. 

to  non-resident  owner,  432. 

when  to  be  personal.  440. 

recital  of,  not  enough,  440. 

of  time  of  filing  report,  441. 

must  be  to  the  owner,  443,  444. 

must  name  land  owner,  445,  446. 

how  to  be  given,  446. 

when  essential,  447. 

by  publication,  445,  446. 

proof  of  publication,  448. 

construction  of,  447. 

before  amendment,  464. 
in  general,  478,  1031,  1032,  1087. 
to  quit  before  ejectment,  987. 
of  appeal,  1055. 
of  lien,  1087,  1090. 
of  lien  suit,  1093. 

by  publication,  1099. 
of  stockholder's  meeting,  1182,  1469. 

when  not  necessary,  1362. 
of  consolidation,  1386, 1422. 

of  defective  state  of  fence,  1637,  1640, 1641, 1647, 1627,  1634,  1730-1732. 
to  build  fence,  service,  1816. 
of  intent  not  to  keep  fence  and  gate,  1645. 
of  approaching  train,  signal  not  necessary,  1929. 
to  make  crossing,  2098,  2099. 
to  minors— posting,  2128. 
exempting  carrier  by,  2341a-2344,  2346,  2352,  2357,  2390. 

on  free  pass,  2347. 

to  railway  of  grain  at  warehouse,  2601. 
of  change  of  consignment,  2622. 
of  arrival  of  grain,  to  consignee,  2623. 
of  revocation  of  warehouse  license,  2637. 
of  change  of  schedule,  2766. 
of  grain  becoming  injured,  2766. 
of  sale  of  damaged  grain,  2766. 
not  to  put  grain  in  warehouse,  2774. 
in  prior  statutes  for  condemnation,  437-452. 
of  laying  out  street,  437. 
of  increase  of  capital,  87,  120(1,  2941. 
to  carrier  not  to  store  grain,  2774. 
to  warehouseman  not  to  take.  2774. 
of  change  of  grade  of  inspection,  2796. 
of  appeal  from  inspection  of  grain,  2798. 
to  warehouseman  of  purchase,  2972. 
of  transfer  of  warehouse  receipt,  3020-3023. 
NUMBERING— may  be  required,  1451. 
NUISANCE. 

damages  for,  in  condemnation,  520. 
—33 


434  INDEX. 


NUISANCE-Conttnued, 

track  in  street,  142,  148,  1377,  1294a. 

by  grade,  810. 

abating,  817. 

by  railway  obstructing  street,  865. 

recovery  for,  in  street,  885,  902. 
OATH. 

of  jury  to  condemn,  486-488. 

of  railroad  commissioners,  2627. 

of  committee  of  appeals,  2799. 

of  chief  inspector,  2756. 
OBJECTION. 

not  made  on  trial,  367. 

waiver  of,  487,  497-500. 
OBLIGATION. 

Of  contract.  229,  1210d,  1211,  1211a. 

impairing,  78. 

OBSCENE  LANGUAGE—  expulsion  of  passenger  for,  2550. 
OBSTRUCTION. 


,  . 

action  for  special  in  jury,  863. 

ordinance  against,  892,  2113-2117a. 
of  sidewalk—  injury  from,  2010.     - 
of  highway  crossing.  2111. 

liability  of  conductor,  &c.,  for,  2117a. 
of  access  to  lots,  904. 
of  flow  of  water—  removal,  876. 
of  water-course,  1236-1236c. 
of  navigable  stream,  1235,  1244,  1244b. 
of  natural  flow  of  water,  1237-1241. 
on  railway  track  or  bridge,  171,  173. 
of  railway,  1331. 

of  passage  to  eating  house,  1500a. 
of  access  to  depot  or  trains.  1503,  1505. 

of  view  of  approaching  train,  1803,  1805,  1873,  1881,  1921,  1930. 
to  use  of  property,  563. 
of  business  of  railway,  2553. 

conspiracy  to,  2554. 

OCCUPANT—  notice  to,  of  condemnation,  445. 
OCCUPATION—  of  land  before  payment,  197,  201,  208. 
OFFENSE—  on  railway  and  steamboat,  178. 

OFFICE. 

tenure  of  directors—  filling  vacancy,  1175,  1516. 
of  railway  to  be  kept  in  state,  61,  3174,  1425. 
open  for  tickets,  2293-22%,  2000,  2316. 
of  railroad  commissioners,  where  to  be  held,  2628. 

OFFICER. 

of  railway  —  embezzlement  by,  169,  170. 

ministerial  and  Judicial,  474. 

removal  by  stockholders,  1185. 

appointment  by  directors,  1188. 

powers  of,  1190. 

to  dispose  of  securities,  1190. 

loan  of  corporate  funds  to,  1200. 

power  of  legislature  to  make,  personally  liable,  1210d. 

to  prosecute  minors,  2125. 

to  wear  badges,  2338. 

examination  or,  under  oath,  2638. 

penalty  for  not  making  reports,  2641. 

giving  certificate  of  party's  shares  of  stock,  2935. 

liability  for  refusal,  2935,  2936. 
OPENING. 

of  depot  for  passengers,  2130. 

and  closing—  right  to,  522,  1041. 
OPERATION. 

of  road,  1144,  1319. 

condemnation  for,  1213,  1229.      • 
OPERATOR—  of  railway—  notice  to  fence,  1816. 
OPINION. 

of  witness—  matter  of  law,  557. 

experts,  558,  559,  747,  748. 

difference  in  market  value,  626. 


INDEX.  435 

OPINION-Continwed. 

evidence,  726,  733,  753,  756. 

value,  737. 

damages,  738,  741,  742,  747. 

jury  not  bound  by,  745-749. 
ORDER. 

for  laying  road— evidence,  451. 

of  court  making  parties  and  notice,  456 . 

recitals  in,  478. 

omission  to  fix  time  of  meeting,  479,  480. 

appointing  commissioners,  478-480. 

of  court,  924. 

finding  who  entitled  to  condemnation  money,  1014 . 

of  board  of  directors,  1192. 

not  of  record,  proof  of,  1200e. 

for  increase  of  capital— recording,  1206. 

for  issue  of  mortgage  bonds.  1338. 

for  mortgaging  road,  etc.,  1338. 

for  loan  ana  mortgage,  1467,  1468,  1470. 
to  be  recorded^  1470. 

ORDINANCE. 

for  track  in  street,  121,  122,  123,  127,  130-135,  138,  139,  359,  361,  520,  526,  1254,  1263a, 

892,  896,1961,  828. 

only  notice  necessary  in  laying  street,  437. 
for  laying  a  street,  364,  365,  437. 
must  fix  route  and  termini,  1258. 

void  for  uncertainty  and  delegation  of  power,  1258, 1258a. 
sufficiency  to  authorize  trackln  street,  1261b,  1263a. 
delegation  to  select  location,  1262. 
granting  use  of  street,  construed,  1264, 1281a,  1283. 
against  obstruction  of  street,  1301-1303. 
for  track  connecting  warehouse,  1311. 
as  to  motive  power,  1317. 
flagmen  at  crossings,  1888. 
speed  of  trains,  2152. 

liability  under,  2152-2159. 

sufficiency  of,  as  to  speed  of  train,  2157,  2159. 

presumption  of  negligence,  2158,  2159. 

power  to  pass,  2165. 

not  a  license  as  to  speed,  2190. 

must  be  given  in  evidence,  2194 

proof  of  T>eing  in  force,  2197. 

proper  evidence  of  negligence,  2198,  2199. 
sufficiency  of  declaration  to  admit,  2200. 

OVERFLOW. 

of  upper  land,  870-877,  905,  906. 

right  of  way  no  justification  for,  878. 

liability  for,  1237-1243. 

by  bridge  (insufficient),  1398. 
OWNER. 


right  to  inspect  property  stored,  105. 
notice  of  condemnation  to,  • "~ 


,  443,  445. 

of  stock,  record  of  names,  etc.,  1174. 
of  grain,  right  to  receive  in  cars,  2774. 
right  to  change  consignment,  2774. 
time  to  remove  from  cars,  2774. 
of  cattle,  duty  to  fence,  1584, 1585. 
OWNERSHIP. 

of  grain,  not  affected  by  change  of  consignment,  2623. 
warehouse  receipt,  evidence  of,  2754. 
proof  of,  1768,  1769. 

PAINT  SHOPS-^condemnation  for,  338. 
PARALLEL  LINES. 

consolidation  of,  denied,  67,  1412,  1422,  2940, 
purchase  of,  prohibited,  2940. 
PARKS. 

condemnation  for,  201,  202,  208,  348,  477,  511,  966,  967. 
measure  of  damages,  591,  641. 
damages  for,  784,  785,  952. 
right  to  abandon,  958,  959. 
PARTIAL  TAKING.    See  EMINENT  DOMAIN. 
PARTIES. 

to  petition  to  condemn,  325,  423-430. 

heirs  on  owner's  death,  424,  425,  1063. 
remainderman,  426. 


436  INDEX. 

PARTIES— Continued. 

former  owner,  427. 

tenants  in  common,  428,  429. 

jurisdiction  of,  428,  429. 

new  ones,  456,  464-466,  1036. 
action  by  lot-owner,  grantee  or  grantor,  423. 
action  on  inspector's  bond,  2762. 
to  creditor's  bill,  2830,  2831. 

bill  to  enforce  stockholder's  liability,  2885,  2886. 
defendant  to  bill  of  discovery,  114,  115. 
who  may  sue  stockholders,  2888. 
action  for  damages  to  lot,  758. 
condemnation,  lessor,  272,  431. 

holder  of  easement,  276. 

PAETNER8— stockholders  liable  as,  2846-2848. 
PARTNERSHIP— of  railways,  1484a. 
PASS — embezzlement  of,  170 . 
PASSAGE— to  and  from  trains,  2131,2133-2139. 
PASSENGERS. 

expulsion  from  cars,  2275-2337,  1325, 1328,  1333. 

refusal  to  pay  fare,  2275,  2285,  2287,  2288,  2289,  2292,  2298,  2305,  2316,  2337. 

subsequent  offer  to  pay,  2332. 

neglect  to  purchase  ticket,  2277,  2278,  2283,  2286,  2291,  2292,  2293,  2298,  2299,  2311- 

2314,  2=316,  2324. 

when  ticket  cannot  be  had,  2293-2296,  2300. 
for  disorderly  conduct,  2275,  2281,  2317,  2321-2323,  2550. 

violation  of  rules.  2277-2279, 2283, 2284, 2286,  2291, 2292, 2302, 2303, 2311, 2313-2315,  2318. 
refusal  to  surrender  ticket,  2301,  2304,  2319,  2324. 
rules  as  to  lay-over  ticket,  2318. 
rights  under  family  ticket,  2327-2329. 
when  must  be  at  regular  station,  2285,  2289,  2290,  2291,  2298,  2299,  2305,  2307, 2310, 

2312-2314, 

when  may  be  at  other  place,  2276,  2302,  2303. 
worthless  ticket,  2288,  2310. 
from  freight  train,  2297,  2298,  2315,  1157y,  1158, 1158e. 

ladies'  car,  2308,  1157t,  1157u,  1330,  1331. 
on  account  of  color,  2309, 1337. 

"  eight  train,  2206. 


excluding  from  freight  train,  5 
when  and  for  what,  2275-2280. 


right  to  eject,  2550. 

rules  and  regulations  as  to,  1157s,  1157v,  1327, 1328. 

from  ladies'  waiting-room,  1158b,  1336. 

damages  recoverable  for,  2288-2290,  2334. 

unnecessary  force,  2281,  2303. 

mistake  of  conductor,  2320. 
rules  and  regulations,  1320. 

giving  check  to.  2319. 

excluding  well-behaved  persons,  2333, 1337. 

tickets  for  freight  trains,  1158a. 

as  to  fare  and  freight,  1320. 

tickets  before  entering,  1324,  1333,  1334. 

accommodations  of,  1319,  2180. 

tending  to  safety  of,  1329. 
injttrj/  to. 

assaulting  and  beating,  2280,  2282,  2287,  2307. 

protection  from  assault,  &c.,  2335-2337. 

not  dependant  on  payment  of  fare,  2337. 

from  defective  platform,  2131-2139. 


taking  ticket,  no  contract  to  stop  at  the  station,  2206. 

carrying  beyond  station,  2207,  2*)9,  2210,  2212,  2214,  2215,  2219,  2220-2224. 

leaping  from  cars  in  motion,  2207,  2209. 

getting  on  while  in  motion,  2221,  2223. 


not  stopping  to  take  on,  2213. 
time  for  getting  off,  2208,  3209. 
act  for  protection  of,  2549-2551 . 
contributory  negligence  of,  2209,  2211-2223. 
comparative  negligence,  2222. 
signals  at  crossings,  not  for,  1883. 

PASSENGER  TRAINS. 

freight  cars  in  rear  not  allowed,  2129. 
stopping  at  stations.  2204,  2209,  2220,  2223-2225. 

at  principal  stations,  2205. 

at  county  seats,  2224,  2225,  2228. 
brakemen  on,  2229. 

liability  for  starting  suddenly,  2226,  2227. 
See  STATIONS. 


INDEX.  437 


PATROL  ON  ROAD— not  required  as  to  fences,  1630,  1631,  1635-1639. 
PAYMENT.    See  CONDEMNATION.    COMPENSATION.    STOCK  AND  STOCKHOLDER. 

PENALTY. 

to  enforce  keeping  office  In  state,  61,  1472,  1473. 

for  extortion,  75,  76,  81,  94    1428,  1515. 

for  non-payment  of  stock,  1211. 

neglect  to  stop  train,  2101-2103. 

effect  of  change  in  law,  2105. 

obstructing  highway,  2119-2121. 

combustibles  on  right  of  way,  1800. 

animals  on  track — injury  from,  1807. 

neglect  to  post  law,  2128. 

as  to  Texas  cattle,  2148-2151 . 

excessive  speed  in  city,  2152-2159. 

neglect  to  give  signal,  1844,  1847. 

sale  of  tickets  without  authority,  2558. 

not  redeeming  tickets,  2561. 

not  erecting  scales,  2599. 

unjust  discrimination,  1428,  1515,  2710,  2713. 

as  to  grain,  &c.,  2600,  2622,   2624,  2639,  2640,  2641,  2730,  2731,  2739,  2747. 

assuming  to  act  as  inspector,  2771,  2772. 

misconduct  of  inspector,  2773. 

obstructing  weighmaster,  2811. 

neglect  as  to  car  couplings,  2444. 

as  to  flagmen,  2450. 

other  neglect  of  duty,  2455,  2456,  1506,  1522,  1524,  1525. 
stockholder's  liability  is  not,  2851. 

PERSONAL  PROPERTY. 

what  is,  1369-1375b,  62-66. 

rolling  stock,  62,  63. 

shares  of  stock,  1200,  1200a. 

in  hands  of  trustees,  garnishment,  1345. 

PERSONAL  LIABILITY— of  stockholders.    See  STOCKHOLDERS. 
PETITION. 

to  city  for  use  of  street,  151-156, 159,  160. 
for  use  of  freight  trains  over,  157. 
See  CITIES  AND  VILLAGES. 
of  lot-owners,  as  to  use  of  streets,  1271,  1284, 1281. 

for  elevated  ways  in  street,  2948. 
for  lien  against  railway,  1083,  1093. 
time  of  filing,  1095. 
sufficiency  as  to  notice,  1088. 
to  condemn.    See  CONDEMNATION. 
PHYSICAL  INJURY. 

as  a  ground  for  damages,  801,  803,  804,  806,  835,807,  839,  851,  857,  859,  890,  902-904,  916. 
to  property  not  taken,  234,  629. 

PISTOLS— as  baggage,  2242,  2255. 
PLACE. 

of  delivery,  by  carrier,  106,  107. 
of  grain  to  railway,  2601. 
by  railway,  2600,  2602-2621. 
for  unloading  grain,  2623. 
when  cattle  get  on  track,  1591,  1618,  1621,  1672,  1673,  1705-1707. 

not  when  killed,  1606 . 
PLANK  ROADS. 

railway  over,  1235. 
condemnation  of,  325. 
PLANS  AND  ESTIMATES. 

as  evidence  on  condemnation,  727,  784. 
explaining,  by  engineer,  729. 

PLANS  AND  SPECIFICATIONS, 
evidence  on  condemnation,  418,  516. 
preserving  in  record,  757. 
compelling  production  of,  750. 
road  to  be  constructed  according  to,  728-734. 
liability  for  change  of,  758. 
of  proposed  building,  to  show  uses,  754,  755. 

PLAT— dedication  of  street  by,  1248,  1249. 
PLATFORM. 

liability  for  defects  in,  2131-2139. 

for  defect  in  floor,  1500. 
PLEA-not  allowed  in  condemnation,  419-422,  515. 


438  INDEX. 

PLEADINGS. 

petition  to  condemn,  402-418. 
defects  in,  782. 
defects  in  cross  petition,  523,  782. 

PLEDGE. 

of  stock  informally  assigned,  1202a,  1202b 

how  far  liable  to  execution,  2926. 

who  liable  to  creditors.  2859,  2860. 

who  liable  for  stock,  1208. 
of  warehouse  receipts,  3024-302G. 

construed  as  not  a,  2993. 

POLES— of  telegraph,  351,  369, 1003. 
POLICE  POWER. 

over  corporations,  50-53,  1431, 1433. 1435-1458. 

subject  to  constitutional  limitations,  52,  1437,  1439,  1445. 

nature  of  the  power.  1445,  1446. 

inalienable,  1443,  1446. 

applies  to  pre-existing  corporations,  1449. 

conductors  invested  with,  2549a . 

delegation  of,  1438. 

POLICE  REGULATIONS, 
to  regulate  trains,  2156 
fencing  track,  1519, 1520. 1524. 
signal  at  railroad  crossings,  1828. 
as  to  what  in  respect  to  railways,  1450-1457. 
stopping  trains  at  county  seats,  2224. 
no  damages  allowed  for,  805,  576,  577. 

POLITICAL  QUESTIONS— what  are,  377,  383,  392,  394. 
POND. 

for  use  of  mill,  690. 

for  making  ice,  691. 

in  city— a  nuisance,  810. 

POSSESSION. 

when  proof  of  necessary,  889. 

when  lawful,  987. 

when  a  trespass,  948. 

when  lawful  in  inception — demand  necessary,  988-990. 

pending  appeal,  991, 1057,  1067, 1068. 

license  to  enter,  993. 

effect  of  giving,  992. 

as  evidence  or  grant,  994,  993. 

extent  of— no  deed,  999. 

for  telegraph,  1002. 

of  land  for  street,  1008 . 

order  for,  on  bond,  930,  934,  958. 

effect  of  reversal  on,  988. 

of  grain  by  warehouseman,  2997. 

by  transfer  of  receipt,  3022,  3023. 
by  corporation,  not  compelled,  1026. 
before  payment  of  compensation,  1M7,  201-208,  282,  963-986,  1004, 1025,  1035 

enjoined,  960,  963-965,  982-985,  1033. 
remedy  for  wrongful.  995,  1001,  1027, 1068. 

ejectment  for,  997. 

forcible  entry,  991. 

action  at  law,  240,  241. 
by  consent  before  payment.  987. 
condemnation  by  party  in,  996. 
right  to  dismiss,  after  wrongful,  459. 
interest  on  judgment,  depends  on,  945-947,  949,  950,  952. 

POST  OFFICE— notice  by,  1192. 
POSTING. 

statement  by  warehouseman,  104,  2755. 

of  rates  of  charges,  1452. 

of  the  minor  law,  2128. 

of  law  by  warehouseman,  2794a. 

of  ticket  agent  authority,  2559. 
PRACTICE. 

time  of  presenting  petition,  405. 

forming  issues,  419-422. 

removal  to  U.  8.  court,  430. 

amendments,  455-466, 

new  parties,  456-466. 

right  to  open  and  close,  522. 

on  appeal,  1037. 


INDEX.  439 

PRELIMINARY  SURVEY. 

remedy  for  damages  by,  705, 1220, 1221. 
power  to  make,  1220. 

PREPONDERANCE.    See  EVIDENCE. 
PRESIDENT. 

compensation,  1177-1178b. 

duties,  1183. 

powers,  1189.  1191. 

service  of  notice  of  lien  on,  1087, 1090. 

service  of  process  on,  1104, 1105,  1106, 1110. 
when  to  be  served,  1114, 1199. 
return  to  show  his  absence,  1109-1112. 
PRESUMPTIONS. 

against  monopoly,  258. 
'  of  ownership  as  tenants  In  common,  460. 

of  right  to  condemn  for  lateral  road,  330. 

in  favor  of  verdict.  <fec.,  495,  539,  545,  547,  680,  709. 

in  favor  of  proceeding  collaterally,  273,  932,  1030,  1031 . 

of  license  to  enter  land,  993. 

of  sale  of  right  of  way,  994. 

as  to  stock  issued,  1200e. 

that  houses  compose  village,  1577. 

of  negligence,  1616,  2152. 

of  notice  that  fence  is  out  of  repair,  1627. 

of  capacity  to  commit  crime,  2127. 

of  negligence  from  speed,  2158-2163,  2166-2170. 

when  no  ordinance  regulating,  2165-2170. 

of  agent's  authority  to  release  carrier,  2341. 

as  to  shipper's  assent  to,  2344,  2345,  2366,  2395,  2399,  2400-2405. 

of  negligence  by  escape  of   fire,    2485,   2486,  2495,  2496,  2498,  2510,  2516,  2517,  2521, 
2533,  2535. 
what  rebuts,  2521,  2533,  2546. 

of  intermixture  of  grain  by  private  warehouseman,  2987. 

PRIMARY— liability  of  stockholder.    See  STOCKHOLDERS. 

PRIVATE  PROPERTY. 

taking  for  public  use,  179,  214,  303. 
materials  taken  by  contractors,  182 
what  is  a  taking,  230-241 
damage  to,  799-808,  303. 
how  far  that  of  corporation  is,  255. 
railway  property  is,  292,  296. 
when  switch  is,  71 . 

PRIVATE  ROAD— no  condemnation  for,  195. 

PRIVATE  USE— condemnation  for  and  what  is,  301,  302,  353,  354. 

PRIVILEGE— by  special  laws,  40,  58. 

PROCESS. 

service  of,  on  corporations,  1099. 

to  execute  orders,  456. 

of  law,  depriving  by,  80,  209. 

PRODUCTION  OP  PLANS— compelled  on  condemnation,  751. 

PROFILE  OF  GRADE— evidence,  760,  887. 

PROFITS. 

of  business,  too  uncertain,  647.  657,  660,  661,  674-676. 

of  land — not  proper  damages,  682. 

PROMISSORY  NOTES— power  of  railway  to  take  and  negotiate,  1162. 
PROPERTY. 

depreciation  of,  80,  209. 

defined,  236,  250. 

by  what  power  divested,  307. 

\vhat  protected  as,  268-272. 

limited  use  is,  562. 

in  street,  condemnation  of,  247,  250. 

inspection  of,  in  store,  105. 
PROPRIETY. 

of  taking  property,  373-394. 

of  new  road,  374,  37n,  1042. 
PROSPECTIVE. 

statute,  1391 . 

operation  of  constitution,  1,  2,  216,  218. 

value  of  property,  722. 
PROXIMATE  CAUSE .     See  2512,  2513,  2529-2531,  2541. 


440  INDEX. 


PROXY. 

voting  by,  59,  1206, 1459, 1468. 
by  city,  1181. 

PUBLIC. 

bound  by  city— grant  of  street,  141,  1253. 
when  it  alone  can  sue,  863. 
dedication  to,  1000. 
depot  and  grounds  are  quasi,  1501. 
agents,  when  directors,  act  as,  290. 

liability  of,  for  negligence,  166,  167. 
grounds,  condemnation  of,  290,  341 . 

taking  when  act  of  state,  290. 
safety,  1429. 
road  crossings,  1583. 

boards  at,  1825,  1826. 
PUBLIC  HIGHWAY. 

how  far  railway  is,  68-74,  292,  289-293,  295,  296. 

what  is,  294,  298. 

a  street  is,  294,  298. 

city  may  compel  fencing  of  railway,  144. 

condemnation  by  railway,  326. 

telegraph  in,  351. 

amount  of  land,  373. 

street  railway  In,  270-272. 

property  of,  374. 

adjustment  of  damages,  501-504. 

PUBLIC  NECESSITY.    See  183,  228. 
PUBLIC  NOTICE— of  consolidation,  67. 
PUBLIC  OFFICE— of  railway  in  this  state,  1174. 
PUBLIC  UTILITY.     See  228. 
PUBLIC  USE. 


when  the  use  Is  different,  263. 
what  is  a  public,  289,  292,  294,  295,  296,  298,  301,  302,  1273, 1275. 
how  determined,  301. 
PUBLIC  WORKS, 
materials  for,  182. 

value  of  land  from  proximity  to,  587. 
PUBLICATION. 

of  notice,  1093,  1099. 

to  non-residents,  432. 
same  as  in  chancery,  436. 
must  name  party,  446. 
proof  of,  448. 
before  hearing,  453 
as  to  new  parties,  464. 
of  consolidation,  1422. 

election  of  directors,  1516. 
schedule  of  rates,  2722. 

by  warehouseman,  2764. 
change  of  inspection  grade,  2796, 
PURCHASER. 

action  by,  for  damage  to  land,  755,  792,  1025. 
of  railway— duty  to  fence,  1540, 1541. 
of  warehouse  receipts,  2747,  2749,  2958,  2969,  2970,  2971 . 
of  stock  on  execution,  2937-2939. 
railway,  of  land,  1229. 
sale  of  railway  under  mortgage,  1343. 
lessee  of  road  may  purchase,  1426. 
of  parallel  and  competing  road,  2940. 
QUALIFIED  FEE -what  is,  1230. 
QUI  T AM— action,  2643. 
QUO  WAKRANTO.    See  362, 1151,  1156L 

RAILROAD  AND  WAREHOUSE  COMMISSIONERS, 
appointment  and  qualifications,  2625,  2026. 
power  of  removal,  2626. 
oath  and  bond  of,  2627. 
compensation  of,  2628. 
furnished  office,  &c.,  2628. 
secretary  and  salary,  2628. 
office  at  Springfield,  2628. 
right  to  pass  on  railways,  2629. 


INDEX.  441 


KAILROAD  AND  WAREHOUSE  COMMISSIONERS— Continued. 
reports  of  railroads  to,  2630. 

what  to  show,  2630. 
answers  to  inquiries  by,  2631. 
application  of  statute,  2632. 
statements  by,  2633. 
make  reports  when  required,  2634. 
examination  of  railroads  by,  2635. 
to  prosecute  for  violations  of  law,  3635. 
to  investigate  causes  of  accidents,  2630. 
to  report  results  to  governor,  2636. 
railways  to  give  them  notice  of  accidents,  2636. 
to  investigate  condition  of  bridges,  &c.,  2636. 

hearing  to  be  allowed,  3030. 
powers  in  respect  to  bridges,  <fcc.,  3636. 
notice  to  rebuild  or  repair,  2636. 

duty  of  railway  to  act  on  their  recommendation,  3636. 
mandamus  to  compel  repairs,  &c.,  3636. 
to  report  neglect  to  repair,  &c.,  2636. 
finding,  &c.,  prima  facie  evidence,  2f>36. 
power  to  cancel  warehouse  licenses,  3637. 
examination  of  books,  &c.,  of  railways,  &c.,  3638. 
power  to  examine  under  oath,  2638. 
may  examine  witnesses,  2039. 
may  issue  subpoenas  for,  2639. 
punishment  of  witness  refusing,  3610. 
penalty  for  obstructing  board,  2641 . 
may  direct  prosecutions,  2642. 
to  enforce  law  against  extortion,  3719. 
to  prosecute  for  violations,  3719. 
to  employ  assistant  attorneys,  2719. 
in  what  county  may  sue,  3719. 
to  make  a  schedule  of  rates,  3720. 

schedule  made  evidence,  2720. 
duty  and  power  as  to  automatic  signals,  2726,  2727 . 
prosecution  for  not  having  weighing  appliance,  2730,  2731 . 
powers  as  to  inspection  or  grain,  2756. 
appointment  of  assistant  inspectors,  2756. 
power  to  fix  charges  for  inspector,  2756,  2800. 
duty  to  fix  compensation  of  inspectors,  2756. 
power  to  appoint  registrar  and  assistants,  3756. 
general  supervision  over  inspection,  2756. 
power  to  remove  appointees,  2756. 

rules  and  regulations  for  payment  of  committee  of  appeals,  27o6,  2799. 
power  to  establish  grades  for  inspection,  2796. 

notice  before  changing,  2796. 
to  appoint  committee  of  appeals,  2797. 

removal  from  office,  2797. 
to  appoint  weighmaster  and  assistants,  2802. 
to  fix  fees  of,  3804. 

rules  and  regulations  for  weighing  grain,  2810. 
to  make  rules  governing  appeals,  2?98. 
to  fix  the  charges  of  railways,  75,  76,  103. 
duty  to  enforce  railway  act,  1474. 

suits  by  and  employment  of  counsel,  1474. 

RAILWAYS. 

incorporation  of,  1144. 

under  law  of  1849,  fixing  termini,  1149. 

when  incorporated,  1149b. 

organization  before  abrogation  of  charter,  1150. 

when  a  new  corporation,  1150a. 

de, facto  corporation,  1147,  1159. 

articles  of  incorporation,  1152. 

contents  of,  1153. 

when  corporation  brought  into  existence,  1155. 
evidence  of  incorporation,  1155. 
judicial  notice,  1168.- 
when  corporate  existence  ceases,  1462. 
validation  of  its  organization,  1463-1466. 
law  has  no  application  to  horse  railways,  1145. 
election  of  directors .    See  DIKGCTORB.    ELECTION. 
of  its  powers  in  general,  1155,  1157-1165. 
to  purchase  and  operate  railway,  1144. 
to  purchase  railway  at  sale,  1144. 
additional  powers,  1230. 

to  acquire  property  by  gift  or  grant,  1236,  1229. 
to  convey  same  when  not  needed,  1226,  12211. 
conveyance  to,  when  only  an  easement,  1330. 
-34 


442  INDEX. 


RAlLWAYS-Continued. 

to  take  and  negotiate  notes,  1162. 

to  lease  and  take  lease,  1163-1165. 

to  make  stock  transferable,  1155. 

to  make  by-laws,  rules  and  regulations,  1155,  11571-1161,  1320-1337. 

to  make  by-laws,  1157-1157g. 

to  transport  persons  and  property,  1316. 

to  make  rules  and  regulations  for,  1320. 

to  borrow  money  and  issue  bonds,  1467.  1468,  2941 . 

to  contract  for  lease  and  use  of  road,  1484. 

to  form  partnerships,  1484a. 

to  make  contracts,  I484b. 

to  own  and  use  watercraft,  1488. 

to  purchase  roads  of  other  states,  2940. 

to  extend  lines  beyond  state,  2940. 

limitation  on  power  to  issue  bonds,  87-90. 

limitation  on  increase  of  debts,  87. 

to  fix  route  and  termini  of  road.  352,  1463. 

to  mortgage,  not  without  statute,  1342. 

to  enter  land,  survey  and  locate,  1220. 

to  lay  out  and  construct  road,  1231. 

altering  route — further  damages,  1234. 

how  much  land  it  may  take,  1231. 

to  build  over  streams,  1235-1236C. 

right  to  connect  with  other  roads,  1485,  1304. 

with  rail  on  bridge,  1487. 
right  of  way  over  school  land,  1492. 

to  use  union  depot  1517. 
to  buy  its  own  stock,  1200,  1203. 
lessees  may  purchase,  1426. 
limitation  as  to  time  of  beginning  work,  1462. 

as  to  time  of  completing,  1462 
contract  for  reduced  rates,  1460,  1461. 
to  intersect  and  unite  with  other  roads,  1304 . 
property  of — what  real  and  what  personal,  62-66. 
power  of  legislature  over,  1428-1433. 
subject  to  general  laws,  1429-1445 . 
vested  in  board  of  directors,  1175. 
consolidation.    See  CONSOLIDATION. 
to  increase  capital .    See  CAPITAL— INCREASE  OF. 
powers  as  to  right  of  way  and  constructifm. 

power  U<  take  by  condemnation,  1213,  325,  330,  334. 
to  take  materials  necessary.  1214,  1215,  182. 
width  it  may  take,  1231-1233,  366-372. 
cutting  trees  near  right  of  way,  1231. 
as  to  crossings,  connections,  &c.,  1304. 
under  law  of  1849,  181. 

as  to  the  fee,  214. 
for  lateral  road,  329-331,  353,  354,  363. 

length  of,  329. 

no  limitation  as  to  switches,  352. 
not  exhausted  by  exercise,  336,  349. 
for  work  and  paint  shops,  337,  338. 
lumber  sheds  and  depot  grounds,  338. 
switches,  turn-outs  and  side-tracks,  352,  356. 
additional  tracks  in  city,  356. 
de  facto  railway  may,  362. 
extent  of  land  taken,  366-372. 

width  of  right  of  way,  366,  367.  369-371. 

for  depots  and  side-tracks,  370. 
for  union  depots,  1512. 
for  elevated  ways,  2943,  2944. 
of  ground  used  by  consent.  850. 
taking  public  property,  341. 
t  .king  for  a  public  use,  289,  292,  295,  296,  302. 

how  far  private,  292. 

railway  property  subject  to,  245-251,  255-256a. 
may  condemn  property  of  another,  231,  244-251. 
part  of  another  road  in  length,  25(ia. 
right  to  take  railway  already  in  public  use,  256a-256e. 

limited  to  crossing  and  connections,  256d,  256e,  1*14,  1305. 
of  rival  road,  259-261. 

presumption  as  to  right  to  take  property  in  public  use,  262. 
power  to  condemn  in  city,  339,  346,  355. 

by  implication,  345. 

power  to  tmttd  road  in  city  and  in  streets 
right  to  bring  road  into  city,  1267-1269. 
legislative  recognition  of  right,  1259. 


po 
lo 


INDEX.  443 


ower  of  city  as  to  location,  grade  and  crossing  of  streets,  117,  118,  120. 

location  subject  to  assent  of  city,  118. 

a  limitation  of  power  of  railway,  118,  1262a. 
but  not  till  used  by  city,  133. 
consent  of  city  necessary,  00,  118. 

how  obtained,  118,  119,  125-127. 

how  made,  1255. 

sufficiency  of  ordinance  for,  121-123,  127,  131,  1201b. 

delegation  of  power,  120,  123,  132,  1262. 
enjoined  until  city  assents,  li'4. 
grant  of  city  binding,  1254,  1255,  1260. 

passes  to  successor,  1256. 

petition  for,  151,  156. 

is  subject  to  rights  of  lot-owner  to  sue,  154. 

conditioned  for  use  of  track  by  other  roads,  134,  135,  1263a.  • 

must  clearly  appear,  1281,  1282. 
right  to  lay  track  in  streets,  1259. 

by  charter,  860,  1251. 

who  may  question,  138.  1252,  1279. 
power  of  city  to  give  leave.  137,  125,  1253. 
may  select  route  without  city's,  assent,  128-130. 
may  cross  street  without  leave,  1261,  1278. 
connecting  tracks  in  street,  72,  73. 

duties  in  respect  to  the  public. 

to  keep  public  office  in  state,  61,  1471. 

fine  for  neglect  of  duty,  1472,  1473. 
books  open  to  inspection,  61. 
what  to  show,  61. 
subject  to  examination,  2638. 
annual  reports  by,  1427. 

penalty  for  not  making,  2641. 
prosecution  for  neglect,  2642,  2643. 
duties  and  liabilities. 

injury  by  entry  to  survey,  etc.,  1221. 
duty  to  unite  and  form  intersections,  1304. 

compensation  for,  1304. 
on  contracts  after  taking  benefits  of,  1463. 
to  repair  on  recommendation  by  railroad  commissioners,  2636, 

mandamus  to  compel,  2636 

duty  to  stop  passenger  trains  at  county  seat,  2304. 
statute  a  proper  police  regulation,  53,  1456,  2224. 

not  a  regulation  of  inter-state  commerce,  2224. 

what  are  passenger  trains,  2225. 

all  its  passenger  trains  to  stop  at,  2228. 

not  at  new  depot,  out  of  town,  2228. 
awning  too  close  to  track,  2137. 
badges,  what  employes  to  wear,  2338. 

not  to  exercise  powers  without,  2338. 
baggage,  checks  for,  2236. 
baggage  smashing,  176,  2274. 
bell  to  be  rung  at  crossings,  1827-1830. 
brakemen,  required,  damages,  2229-2235. 
buckets  in  passenger  coaches,  2443. 
cars,  provision  for  supply,  2130,  2130a,  2130b,  2140,  2141. 
combustibles,  on  right  of  way,  1800-1806. 
conductors,  police  powers  of,  2549a,  2551  . 
connections  by  union  depots,  1513. 

facilities  for  to  be  allowed,  1304. 

of  tracks  in  streets,  72,  73,  1375,  1314. 
corporation,  defined,  49,  2457,  2725. 

for  construction,  2457. 
couplings,  for  cars,  2444-2449. 
crossings,  street,  powers  of  city  to  require,  144  . 

duty  as  to  new  streets,  149. 

duty  as  to  approaches,  1296. 

duty  as  to  highway,  2089-3097a. 

binds  its  successor,  2092. 

neglect  to  make,  2098. 

notice  to  make,  2099. 

penalty  for  neglect,  2100. 

stopping  a  railway  at,  2101. 

penalty—  limitation,  2103. 

effect  of  change  in  law,  2104. 

actions  for  penalty,  2105-2110. 
•    animals,  cruelty  to,  16s. 

willful  injury  to,  175. 
accommodation  at  stations,  2130,  2130a,  2130b,  2140,  2141. 


444  INDEX. 

RAIL  WAYS—  Continued  . 

ax  for  cars,  3443. 

automatic  signals  at  crossings,  2726. 

brakes,  neglect  to  apply,  2233. 

bridge,  injury  to,  172-174. 

Canada  this'  lee,  163,  165. 

cars—  when  treated  as  those  of  company  using,  2478-2480. 

cattle-guards,  city  may  require,  144. 
charges  ot     See  CHARGES.    EXTORTION. 
checks  for  baggage,  2236. 

county  seats,  stopping  of  trains  at,  53,  1456,  2204,  2224,  2225,  2228. 
stopping  at  advertised  stations,  2204-2209,  2220-2223. 
extortion.    See  EXTORTION. 
duty  to  keep  flagmen  at  street  crossings,  146. 
allowing  ice  and  water  along  track,  148. 
injury  from  not  adopting  rules,  11571,  1157m. 
liability  for  acts  of  contractors,  1215-1217,  1219a,  2465-2468,  2473,  2458-i'460,  2464,  2466. 

for  lessees  operating,  1217-1219a,  2469. 

both  liable  for  injury  for  want  of  fence,  2462,  2470. 

for  acts  of  receivers,  1219b. 

for  acts  of  trustees,  1219e,  1219d. 

of  company  using,  2461,  2471,  2472,  2474,  2476-2482. 
signals  of  approaching  trains,  1827-1967. 
obstructing  way  to  inn,  2112. 

highway—  ordinance,  2113-21  17a. 
posting  law  as  to  minors,  2126,  2127,  2128. 
liability  for  injury  at  stations,  2132-2139. 

penalty  for  neglect,  2145-2147a. 
liability  for  Texas  cattle,  2148. 
safe  passage  to  and  from  trains,  2223. 
speed—  no  ordinance,  2169-2183. 
rules  and  regulations  as  to  ticket,  2281-2337. 
ax,  saw,  &c.,  for  cars.  2443. 

office  open  for  sale  of  tickets,  2293-2296,  2300,  2316. 
duty  to  furnish  flagmen  and  shelter,  2450. 

penalty  for  neglect,  2451  . 

contract  to  stop  trains  at  particular  points,  1484c. 
freight  cars  behind  passenger,  2129. 
lessees  liable  for  defects  in  foreign  cars,  2481 
those  making  up  its  trains,  ite  servants,  2479,  2480. 
liability  for  fire  from  engines,  2481-2548. 

grass  on  way,  evidence  of  negligence,  2496,  2497,  2534,  2542. 
furnishing  ticket  agent  with  authority,  2556. 
redemption  of  ticket,  2560. 

penalty  for  not,  2561. 
how  far  a  public  highway,  68,  69,  74. 
tracks,  public,  1273. 
fencing—  duty  on  successor,  1540,  1541. 
railroad  commissioners  to  pass  free,  2629. 
liability  for  coroner's  expenses,  &c.,  2950. 
duty  to  stop  at  railway  crossings,  2726,  2727. 

when  need  not,  2726. 

subject  to  examination  by  railroad  commissioners,  2631. 
purchaser  not  liable  for  debts,  1391. 
liability  for  injury  to  contiguous  property,  809-866,  883-910. 

use  of  street  by  railway,  846-856,  1301. 

prior  to  constitution  of  1870,  846. 

new  burden  on  street,  847,  848. 

license  no  protection,  849-852. 

injunction  as  to  laying,  846.  848,  850,  854-856,  858,  862. 

throwing  surface  water  on  lot,  852. 

right  of  lot-owner  to  assessment  of  damages,  853,  861. 

damage  to  house  built  after  location,  857. 

for  physical  injury  only,  803,  851,  859,  903. 

special  injury    not  common,  863,  894,  895,  898. 

for  use  of  street,  864,  867-882. 

additional  tracks  in,  865. 

culverts—  obstructing  water,  867. 

structures  not  properly  made.  868. 

floods  choking  up  channel,  869. 

obstructing  flow  of  water,  870-875,  877-879. 

right  to  remove  obstruction,  876. 

neglect  —  construction  of  drains,  880-882. 

new  burden—  injunction,  882. 

obstructing  street,  1301a-1303,  891,  892,  832. 


sg  ,         a-,        ,        ,        . 

railroad  in  street,  827,  832,  842,  845-866,  883-910. 
structing  access  to  lot,  237,  646,  677,  825,  830, 


. 

obstructing  access  to  lot,  237,  646,  677,  825,  830,  831,  834,  835,  840-842,  865,  866,  904. 
access  to  place  of  business,  911,  915. 


INDEX.  445 

RAI LWAYS— Continued. 

overflowing  land,  R52,  875,  905,  906. 
under  ordinance  requiring  payment,  911-920. 
moving  place  of  business,  912.  916. 
loss  of  business  and  profits,  912,  913,  916. 
when  action  accrues,  423. 

deviation  from  the  original  plan  in  condemnation,  702,  728,  734,  757,  758. 
in  what  county  sued,  1097. 
power  of  city  to  extend  street  across,  150. 
criminal  negligence  punishable,  167. 
offenses  on  trains,  where  tried,  178. 
criminal  nffenscs. 

cruelty  to  animals,  168. 
embezzlement  by  servants,  169. 

of  tickets,  170. 

malicious  mischief,  171,  173,  174. 
conspiracy  to  injure,  172. 
willful  injury  to  stock,  175. 
injury  to  baggage,  176. 
taking  property  of,  177. 
injury  to  track  or  bridge,  172-174. 

See  LOCATION.    CITIES  AND  VILLAGES.    STREETS.    CROSSINGS.    STOPPING  TRAINS. 
RATES  OF  CHARGES.    See  CHARGES. 
RATIFICATION— of  consolidation  by  legislature,  1402. 
REAL  ESTATE.  I 

when  rolling  stock  is,  62,  63,  66. 
what  is,  1370-1375b. 

power  of  railway  to  acquire  and  convey,  1229. 
REASONABLE. 

rates  and  charges,  6,  75-77,  82,  83. 
may  be  fixed  by  law,  77.  82,  83. 
by-laws,  1157-1157b. 
rules  and  regulations,  1157-1158h. 
REBATE.  . 

contract  to  pay  back,  void,  2680,  2682. 
is  evidence  of  unjust  discrimination,  2680,  2682,  2706. 
RECEIPT. 

of  carrier  limiting.    See  COMMON  CARRIER. 
for  grain  by  railway,  to  be  given,  2599. 

to  show  weight,  2562,  2728. 
warehouse.    See  WAREHOUSE  RECEIPT. 
RECEIVER. 

no  liability  of  railway  for  acts  of,  1219b. 

appointed  for  railway  for  not  delivering  grain  as  directed,  2600. 

may  enforce  stockholder's  liability,  2818. 

appointed  for  defunct  corporation,  2829. 

appointment,  no  release  of  stockholders,  2878. 

no  defense  to  action  for  fencing,  1821. 
RECOGNITION. 

of  powers  of  railway  by  legislature,  1259,  1269. 
of  corporate  existence  and  powers,  345. 
RECORDING. 

of  order  for  mortgage  by  railway,  1338, 1470. 
of  order  increasing  capital  stock,  1206. 
of  by-laws,  1173. 
amount  of  capital  stock,  1174. 
articles  of  incorporation,  1152,  1156. 
articles  of  consolidation,  1424. 
report  of  jury  on  condemnation,  489. 
conditional  sale,  1493, 1495. 

certificate  of  payment  of  capital  stock,  2838,  2842 
sworn  statement— conditional  sale,  1498. 
RECORD. 

owner  shown  by— necessary  party  to  condemn,  427. 
must  show  personal  notice.  440. 
showing  disqualification,  485. 
preserving  plans  in,  757. 
what  apart  of,  931. 
of  verdict  and  judgment,  1070. 
of  notice  of  lien,  1087,  1090. 

when  to  show  provision  for  compensation,  1177-1178b. 
proof  of  order  not  entered  of,  1200e. 
RECORDS. 

inspection  of  warehouse.  105. 

examination  of  railway  by  stockholder,  1186. 


446  INDEX. 


REDEMPTION. 

from  sale  on  foreclosure,  not  allowed,  64. 

of  tickets,  penalty,  2560,  2561. 

REGISTERED  FOR  COLLECTION— marking  on  warehouse  receipts,  2800. 
REGISTRAR. 

appointment  and  removal,  2756. 

statement  of  warehouseman  to,  2755. 
REGISTRY— of  stock  and  transfers,  1425,  1471. 
REGULATIONS. 

of  charges  of  railways,  68,  78. 

of  commerce,  84. 

of  charsres  by  warehouses,  102. 

of  inspection  of  grain,  108, 112. 

of  tracks  in  streets,  118-136. 

of  use  of  streets,  1270,  1280. 

of  speed  of  trains,  1453. 

of  use  of  steam,  1454. 

ladies1  waiting  room,  1504. 
RELEASE. 

Of  damages,  necessary  in  laying  highway,  502,  504. 

of  right  of  way- bar,  796-798. 

of  subscription— fraud  as  to  creditors,  1195,  1196. 

effect  of  an  agreement  for,  1228. 

of  lien  by  contractor,  1084. 

of  lien  by  fraudulent  statement,  1498. 

of  duty  to  fence,  1719-1727. 

of  stockholder's  liability,  2837,  2838. 
dissolution  does  not,  2876. 
nor  bankruptcy,  2877. 
nor  receivership,  2878. 
neglect  to  sue  in  three  months,  2904. 

REMAINDER-MAN— when  necessary  party  to  condemn,  426,  444. 
REMEDIAL  LAW. 

eminent  domain  law  is,  305. 

fencing  law  is,  1527. 
REMEDY 

cumulative,  111,  1071,  2724. 

election  of,  1612. 

new  one  for  property  damaged,  235,  804,  805,  853,  856. 

when  exclusive,  281,  705. 

condemnation  by  jury,  881. 

when  by  the  public  alone,  863. 

for  wrongful  possession,  995. 

no  part  of  the  obligation  of  contract,  1211a. 

statute  must  be  followed,  1221 . 

for  improper  use  of  road,  1290. 
injunction,  1290-1293,  1294a. 

to  collect  condemnation  money,  988,  1043. 

against  unlawful  lease,  1483. 

for  extortion — cumulative,  2724. 

against  warehouseman  —refusal  to  deliver,  2747,  2753,  2782. 
at  common  law,  2794. 

against  defunct  corporation,  2832. 

against  stockholder,  at  law  or  equity,  2879-2884,  2907,  2908,  2919,  2923-2925. 

when  in  equity  against  warehouseman,  2967. 

when  in  equity,  lien  against  railway,  1076. 

at  law,  holding  new  company  liable  for  debts  of  old,  1401 . 

See  CHANCERY. 
REMOTE. 

damages,  565,  712,  718,  722-724,  783,  784. 

cause  of  injury,  2512,  2513,  2529-2531,  2541. 

See  DAMAGES.    FIRE. 
RENEWAL. 

of  charter,  1172. 

of  conditional  sale,  1493. 

RENTAL  VALUE— on  question  of  damages,  907,  1022. 
REPAIR. 

shops — condemnation  for,  1213. 

gutter,  out  of,  821. 

of  fence,  not  before  duty  to  make,  1539. 

of  cattle-guard  in  street,  1596. 

leaving  bars  down,  1608. 

fence,  gates,  and  bars,  1609. 

keeping  gates  closed,  1609. 

notice  of  fence  being  out  of,  from  time,  1627. 


INDEX.  447 

RE  P  AIR— Continued. 

diligence  to  keep  fence  in,  1635-1638. 
time  in  which  to  make,  1637. 
notice  to,  of  fence  and  gate,  1816. 

right  of  owner  to,  1817-1824. 
estoppel  to  deny  duty  to,  1646,  1647. 
of  fence  by  owner  defectively,  1730-1732. 
of  crossings  and  approaches,  2098,  2099. 
See  FENCING  TRACK. 
REPEAL. 

laws  by  constitution,  44,  45,  48,  155,  217,  221,  222,  308-311,  313,  314,  317,  324,  1065,  1071, 

1276. 

of  charters,  56,  58. 
city  charters,  57,  136. 
laws  of  1849,  1147,  1148. 
laws  of  1852,  92,  283,  284. 
of  prior  acts,  1463. 

saving  of  rights,  1463. 

saving  against,  2724,  2801 . 
by  implication,  1530,  1532. 
REPORT. 

of  directors  to  auditor,  61, 1427. 

of  president  to  stockholders,  1183. 

of  railway  may  be  required,  1450. 

by  railroad  commissioners,  2H34. 

by  railway — penalty  for  neglect,  2641. 

by  warehouseman  to  registrar,  2755. 

of  accident,  &c.,  by  railroad  commissioners,  2636. 

of  jury— to  show  notice,  440. 

time  of  filing  and  notice,  441. 

modification  of,  441,  467. 

part  of  the  record,  931. 

award  construed,  1026. 

as  to  whom  compensation  belongs,  1012 

of  width  of  way,  1233. 

See  VBRDICT. 
REPLEVIN. 

of  grain,  after  mixing,  2953. 

against  wrongful  transfer  of  receipt,  2970. 

RESERVATION. 

in  deed  passes  no  title  to  another,  998, 1000 
of  power  over  corporations,  1210a-1210c. 

RESIDENCE. 

of  corporation,  1153. 

of  officers,  61,  1174. 

of  directors,  67,  1187,  1187a,  1422 

of  stockholders,  list  of,  1425. 

RESOLUTION. 

grant  of  use  of  street  by,  125-127,  1254. 

of  directors,  1192. 

to  increase  capital— recording,  1206. 

to  mortgage  road,  &c.,  1338. 

fixing  rates  to  induce  aid,  1460. 

recording,  1400. 
of  stockholders,  to  mortgage,  1467  1468 

recording,  1470. 

RESTORATION— to  former  usefulness,  1235,  1242,  1243,  1245,  1297,  1298. 
RESTRICTION. 

of  carrier's  liability,    See  COMMON  CAKKIER. 
on  police  power,  1437,  1439,  1445. 
RETURN. 

of  service  of  process,  1100,  1105,  1132. 
plea  in  abatement,  1126. 
amending,  1100. 

showing  character  of  person  served,  1100,  1105. 
denying,  1102,  1132. 

REVERSAL— effect  of,  988,  1043,  lOttii, 
REVERSION.    See  1006. 
REVOCATION. 

of  warehouse  license.  2(i37,  2737,  27(iti. 

of  license  to  enter  and  make  road,  997. 

REVOLVER— as  baggage,  2255. 


448  INDEX. 

RIGHT  OP  WAY. 

condemnation  by  railway  for,  181,  1213. 
taking  before  payment,  201,  202,  208,  217. 

Injunction,  190, 197. 
when  the  title  passes,  192,  195. 
Canada  thistles  on,  165. 

effect  of  new  constitution  on  proceeding,  218,  225,  226. 
new  burden  on  land,  232,  239,  241,  270. 
what  may  be  taken  for,  242-256a.  , 

across  another,  231,  264. 
for  telegraph,  232,  241. 
on  property  in  public  use,  262. 

when  use  is  different,  263. 

additional  crossings,  265-267,  273 . 

over  another  in  street,  268,  269,  271,  274. 
for  lateral  road,  330. 
for  sewer — provision  to  pay,  361 . 
as  much  as  is  necessary,  366-372. 
width  of.  415, 1231, 1233. 

for  depot  and  side  tracks,  370. 
grant  construed,  794. 

no  protection  for  unskillful  construction,  878. 
by  dedication,  1000. 
evidence  of  a  grant  of,  994. 

only  by  deed,  998. 
right  of  owner  to  fence  on,  1009. 
attempt,  to  steal  by  fraudulent  condemnation,  1033. 
deed  for  void  for  uncertainty,  1227. 
cutting  trees  near,  1231. 
obstructions  on,  1231. 

railway  not  bound  to  take  as  much  as  asked,  1232. 
obstructing  flow  of  water,  1238. 
stagnant  water  on,  145. 
ice  and  water  on,  148. 
over  school  land,  1492. 
keeping  clear  of  grass,  etc.,  1800-1806. 
trespass  on,  1808,  1809. 
exclusive  property  of  railway,  1809. 
protection  of  persons  on.  1809. 
negligence  to  walk  on,  1810,  1813,  1814. 
care  of  person  on  track,  181 1. 
team  stalled  on  track,  1812. 
care  to  discover  one  on,  1815. 
acquiescence  in,  gives  no  right,  1809. 

grass  and  weeds  on,  2496,  2497,  2499-2502,  2508,  2509,  2520,  2522,  2535,  2536. 
of  elevated  ways,  2943 . 

ROAD  CROSSINGS.      See  HIGHWAY  CROSSING,  AND  CROSSING*  OF  HIGHWAYS   AND 

STREETS  . 

ROLLING  STOCK.    See  CONDITIONAL  SALE  AND  REAL  ESTATE. 
ROUTE. 

fixing  in  city,  subject  to  consent  of  city,  118. 
who  to  locate  in  city,  118,  128, 133,  1259,  1269. 
uncertainty  of,  in  ordinance,  121,  122,  131 . 
fixing  of,  before  condemnation,  334,  352,  1149. 
RULES  AND  REGULATIONS. 

power  of  railway  to  make,  1155-1161. 
show  of  tickets  before  entering,  11571. 
extra  fare  for  neglect  to  get  ticket,  1157J. 

facilities  for  getting,  1157k. 
procuring  ticket  before  entering,  1157n,  1157o,  1158a. 

expulsion  for  not,  1157o. 
family  ticket,  1158c. 

evidence  as  to,  1158d. 
tirkets  on  freight  trains,  1322,  1333. 

before  entering,  1324,  1334. 

surrender  of,  1325,  1326. 
as  to  tickets,  2281-2337. 
liability  for  not  adopting,  11571,  1157m. 
passenger  on  freight  trains,  1158e. 

on  what  trains,  1157p,  1157q,  1157y. 
trains  not  stopping  at  all  stations,  1157r. 
in  respect  to  passengers,  1157s,  1157v. 

ladies'  car,  1157t,  1330,  1331,  2308,  2309. 

colored  persons,  1157u,  1331,  1332,  2308,  2309. 

surrender  of  tickets,  1157w. 
reasonableness  of,  1157x,  1158g. 
ladies'  waiting  room,  1158b,  1336. 


INDEX.  449 


RULES  AND  REGULATIONS-Omtimied. 
as  to  employe,  1158f . 
witnesses'  construction,  11581. 
refusing  passage,  1158J. 
as  to  manner  of  entering  cars,  1158k. 
injury  for  disobeying,  1159. 
show  and  surrender  of  ticket,  1160. 
as  to  carriage  of  persons  and  property,  1320-1337. 
as  to  fare  and  charges,  1320. 
as  to  running  of  trains,  1321,  1324. 
for  safety  and  comfort  of  passengers,  1327,  1329. 

of  employes,  1335. 

expelling  for  violation  of,  1325,  1328,  1853. 
refusing  well  behaved  persons,  1337,  2333. 
form  part  of  the  contract,  2328. 
for  inspection  of  grain,  2756,  2810. 
for  paying  committee  of  appeals,  2799. 
SALARY. 

of  railroad  commissioners,  2628. 
of  committee  on  appeals,  2799. 
SALE. 

on  foreclosure  without  redemption,  64, 1354. 

stock  and  bonds,  90.  1192. 

burial  lots,  764,  765. 

railway,  994,  1344. 

decree  of,  for  lien,  1096. 

rolling  stock,  reserving  lien,  1493. 

contract,  how  executed,  1494. 

recording — evidence,  1494,  1495, 1496. 

notice  as  to  creditors,  1497. 
of  ticket— without  authority,  2557. 
of  unused  ticket  by  holder,  2560. 

of  stock  on  execution.    See  STOCK. 

contract  as  to  grain,  2990. 

SAMPLER'S  TICKET— not  a  warehouse  receipt,  2746. 
SCALES. 

for  weighing  grain  in  cars,  2599. 

of  warehouse,  subject  to  examination,  2768. 

testing  and  expense  of,  2768. 

use  after  found  incorrect,  2768. 

inspection,  by  weighmas^er,  2803. 
penalty  for  obstructing,  2811. 

SCHEDULE. 

of  regulations,  1158d. 

of  rates,  2696.  2697,  2699,  2700. 

necessary  before  action  for  penalty,  2713,  2721,  2722. 

commissioners  to  make  rates,  2720. 

made  prima  facie  evidence,  2720. 

how  proved,  2720. 

notice  of  change.  2720. 

classification  of  freights,  part  of,  2722 

of  charges  by  public  warehouse,  2764. 

warehousemen  to  publish,  2764. 
SCHOOL. 

special  laws  as  to,  32,  33. 

fund,  2145,  1492,  1506. 

fund— penalty  to  use  of,  1807. 

land,  right  of  way  over,  1492. 

SCIRE  FACIAS— against  corporation,  1151. 
SEAL. 

adoption  of  corporate,  1155. 

to  mortgage  of  railway,  evidence  of  authority,  1357. 

to  agents,  authority  to  sell  tickets,  2556. 

SECONDARY  EVIDENCE— stockholder's  liability,  2815,  2886. 
SECRETARY. 

service  of  process  on,  1099,  1122. 

notice  of  hen  to,  1087, 1090. 

of  railroad  commissioners,  262S. 

appointment  and  salary,  2628. 
SECRETARY  OP  STATE. 

record  of  articles  of  incorporation,  1152. 

to  certify  copies  of,  1155.  1156a,  1171,  1171a. 

to  certify  copies  of  articles  of  consolidation,  1394. 

to  certify  copy  of  certificate,  1509. 

oath  and  bond  of  railroad  commissioners  filed  with,  2627. 
—35 


450  INDEX. 

SECURITY— from  officers  of  railway,  1188. 
SELECTION. 

of  jury,  468. 

of  second  jury,  4T2. 

»f  jury  by  justice,  471. 

of  place  of  railway  crossing,  277. 

of  route  of  road— power,  1361 . 
change  after.  1225a. 
entry  on  land  for,  1820. 

See  LOCATION. 
SEPARATE. 

appeals,  1060. 

assessment  of  damages,  460-463. 

as  to  fruit  trees,  600. 
SERVANT. 

embezzlement  by,  169, 170. 

liability  for  injury  to,  1157m. 

rules  and  regulations  to  protect,  H58f. 

duty  to  fenoe,  not  for  his  protection,  1584,  1585. 

injury  to  baggage  by— liability,  2274. 

of  railway  to  wear  badge,  2338. 
SERVICE. 

ten  days,  434. 

as  in  chancery,  435. 

of  notice— when  personal,  446. 

less  than  ten  days  jurisdiction,  453. 

of  notice  of  appeal,  1055. 

of  notice  of  lien,  1087. 

of  corporation,  how  put  in  issue,  1126. 

on  foreign  corporation,  1125,  1127,  1128,  1130. 

on  interested  director  void,  1131. 

of  director— pay  for,  1177-1178b. 

notice  of  stockholders'  meeting,  1206. 

summons  on  railway,  1099-1122. 
when  on  president,  1099. 
when  on  other  agent,  1099. 

of  notice  to  build  fence,  1816. 

SERVITUDE.    See  847. 
SET  OFF. 

of  benefits,  489,  581,  582.  584-687,  589,  591-594,  596-598,  603,  605,  646.    See  BENEFITS. 

of  debt  by  stockholder,  2873-2875. 

for  storage  in  action  against  warehouseman,  2986. 
SEWER.     See  145. 

under  railway,  150. 

power  of  city  to  condemn,  361 . 

challenge  to  each  defendant,  483. 

defective— injury  from,  811,  817. 
SHEEP. 

cruelty  to,  by  carrier,  168. 

injury  of,  from  neglect  to  fence,  1518. 

SHELTER— for  flagmen  in  street,  2450. 
SHERIFF— may  attest  or  verify  execution,  2931. 
SHIPPER. 

protection  of,  111,  112. 

rights  of,  when  goods  sent  to  fictitious  person,  2957. 
SHOPS— condemnation  for,  416. 
SHORTAGE  OF  GRAIN. 

rights  of  owners,  2951 . 

damages  for,  2562. 

SHRINKAGE  OF  GRAIN— no  deduction  for,  2562. 
SIDE  TRACKS. 

condemnation,  for  more,  350,  352-355. 

condemnation  for,  370,  41ti. 

private,  when  part  of  road,  2C04. 

width  of  way,  370. 

removal— when  enjoined,  2620. 
SIDEWALK. 

injunction  to  prevent  city  from  taking,  816,  8~'8. 

injury  from,  19:!8,  1943,  1957. 
SIGNALS  BY  BELL  OR  WHISTLE. 

malicious  displacing,  171.     c  I 

of  approaching  train,  1898-1902. 

of  evidence  relating  to,  1904,  1905. 


INDEX.  451 

SIGNALS  BY  BELL  OR  WHISTLE— Continued. 
negligence  of  plaintiff  as  a  defense,  1906-1920. 
neglect  to  give,  no  excuse  for  plaintiff's  negligence,  1916-1924. 
duty  of  plaintiff  to  stop  before  crossing,  1925. 
comparative  negligence,  2020,  2028. 
starting  train  without,  2087-2088a. 
on  approaching  a  crossing,  2185,  1827. 
what  companies  bound  by  the  law,  1828. 
applies  to  corporations  previously  formed,  1828. 
a  proper  police  regulation,  1828. 
exempting  company  from  duty,  1829. 
sounding  Dell  or  whistle  sufficient,  1830. 
only  at  highway  crossings,  1831. 
for  whose  protection,  1832-1835. 
liability  for  neglect  to  give,  1836-1888. 
neglect  must  cause  the  injury,  1836,  ia37,  1840-1849. 

burden  of  proof,  1838,  1839. 

does  not  per  se,  render  liable,  1811,  1842, 1848. 
penalty,  not  dependant  on  injury,  1844,  1847. 
e'vidence  of  negligence  causing  injury,  1840-1849. 
when  omission  is  negligence,  1872.  1873,  1881,  1882,  1884,  1885,  1888. 
not  necessary  signal  shall  apprise,  1874-1880. 
at  other  places  than  crossings,  1883, 1887. 
injury  near  crossing,  1885-1887. 
duty  to  give  warning  by,  1889,  1890. 
as  to  those  wrongfully  on  street,  1891 . 
mutual  rights  and  duties  at  crossings,  1898-1900. 
stopping  train,  1892-1897. 
hoard  at  crossing. 

neglect  must  cause  the  injury,  1826. 
See  NEGLIGENCE. 
SIGNING. 

of  petition  for  incorporation,  1508. 
to  condemn  in  corporate  name,  402. 

SINKING  FUND— garnishment  of,  1346. 

SITUATION— as  affecting  value,  713. 

SLEDGE-HAMMER— in  each  car,  2443. 

SLEEPING-CAR— not  liable  as  carrier,  2261. 

SOVEREIGNTY  OP  STATE-eminent  domain  an  attribute  of,  227,  229. 

SPECIAL  ASSESSMENT. 

interest  on — not  special  legislation,  22. 

by  cities— not  special  legislation,  30. 

under  eminent  domain,  193,  304,  2J4. 

before  condemnation  by  cities,  3(K),  365. 

to  pay  for  park,  591 . 

for  street,  mandamus  to  collect,  954. 

imposing  burdens  by,  1439. 

SPECIAL  CHARTEUS-not  affected  by  constitution,  45. 
SPEClALDAMAG^S-necessary  to  right  of  action,  617,  624,  657,  712,  718,  802,831,  889441, 

SPECIAL  LEGISLATION. 

prohibited,  3-28. 

not  prohibited,  32-34. 

corporation  by,  prohibited,  46. 

fencing  railways,  not,  1525. 

inspection  or  grain  in  Chicago,  2736. 
SPECIAL  MEETINGS  OP  STOCKHOLDERS 

how  called,  1182. 

removal  of  officers,  1185. 

increase  of  capital,  1206. 

notice  and  business  at,  12<)6. 

SPECIAL  PRIVILEGES. 

prohibited  by  special  legislation.  39. 

prohibition,  applies  only  to  tlie  legislature,  40. 
SPECIAL  USE. 

is  property,  562. 

measure  of  damages  to,  561,  562,  743. 

value  from,  <i47,  651,  657, 662, 063, 669,  670,  674-676,  678,  679,  682-684,  691,  694-696  743  751 
SPEED  OP  TRAIN. 

in  excess  of  ordinance,  2152-2203. 

in  absence  of  ordinance,  2169-2203,  2197. 

when  alone  not  sufficient,  1685. 

aa  negligence,  1878-1880,  1883. 

regulations  as  to,  1453. 


452  INDEX. 


SPEED  OF  TRAIN -Continued. 

ordinance  proper  evidence,  2198. 

evidence  proper  on  question,  2199. 

sufficiency  of  declaration  to  admit  evidence,  2200. 

instruction — ignoring  cause  of  injury,'2201. 
comparative  negligence,  2202. 

disobedience  to  orders  no  defense  2203. 

See  NEGLIGENCE. 

SPRING— element  of  damage  in  condemnation,  595. 
STAGE  DRIVER— injury  to  baggage  by,  176. 
STAGNANT  WATER-  action  for,  810. 
STARTING  TRAIN. 

without  signal,  2087-2088a. 

with  sudden  jerk,  2226,  2227. 
STATE. 

right  to  regulate  railway  and  limit  charges,  68,  75,  2646-2652. 

power  over  private  corporations,  68,  75-86. 
cannot  be  given  away,  82-84. 

can  alone  confer  right  of  eminent  domain,  213,  346. 

inherent  rights  of,  227,  229. 

cannot  divest  itself  of  eminent  domain,  229. 

grants— implied  reservations  in,  243. 

compensation  by,  286,  303,  325. 

when  director's  acts,  those  of,  290. 

petition  for  condemnation  by,  325. 

condemnation  for  state  house  and  grounds,  325. 

taking  property  of,  341. 

institutions.  325. 

not  subject  to  be  taken  by  railway,  1072. 

power  to  decide  as  to  rule,  &c.,  383. 

independent  of  U.  S.  in  condemnation,  333. 

power  to  prohibit  unjust  discrimination,  2655-2658,  2665. 
STATEMENT. 

weekly  by  warehouseman,  104,  2638. 

financial  affairs  of  railway,  1183. 

ae  to  conditional  sale,  1498. 
recording,  1498. 
false— release  of  lien,  1498. 

of  warehouseman  to  be  posted,  2755. 

to  be  given  to  registrar,  2755. 
STATE'S  ATTORNEY. 

suit  for  obstructing  highways,  2121. 

to  prosecute  under  order  of  railroad  commissioners,  2642,  2643. 
compensation  for,  2643. 

to  prosecute  warehouseman,  2776. 
STATE  WEIGH-MASTER. 

appointment  of,  2802. 

duties  of,  2803. 

fixing  fees  of,  2804. 

qualification  and  bond,  2809. 

penalty  for  obstructing,  2811. 

certificate  conclusive,  2803. 
STATION. 

expelling  passengers  at,  1157n,  1157o,  1325. 

condemnation  for,  1213. 

erection  and  maintenance.  1319. 

posting  minor  law  at,  2128. 

lighting  and  warming,  2130. 
penalty,  2145. 

receiving  passengers,  etc.,  at,  2130. 

accommodations  at,  2131. 

duty  as  to  platform,  2131-2139. 
approaches  to  train,  2131. 

safeguards  and  lights.  2132,  2133. 

liable  for  defects  in  platform,  2132-2139. 

awning  too  near  track,  2137. 

no  duty  to  fence,  1547,  1548,  1574,  1578-1581 . 

duty  to  stop  trains  at,  2204-2209,  2220,  2223. 

trains  stopping  only  at  principal,  2205. 

passing— passenger  jumping  oft  train,  2207-5309. 

stopping  at  county  seats,  2224,  2228,  2225. 

carrying  passenger  beyond,  2210. 
liability  for,  2210,  2212-2214. 
jumping  off  train  at,  2211,  2215-2219. 

what  is  a,  2299. 

See  PASSENGERS. 


INDEX.  453 


STATION  AGENT, 
service  on,  1099.  1119. 
powers  of,  1191b. 
certificate  of,  as  to  tickets,  1157k. 
notice  on,  to  build  fence,  1816.          , 

STATUTE. 

repeal,  308-310,  313,  314,  317,  324,  1065. 

which  governs,  309. 

change  pending  condemnation,  309. 

eminent  domain  is  remedial,  305. 
is  mandatory,  306. 

declaratory,  1200a, 

not  retrospective,  1391. 

penal,  not  enlarged  by  construction,  2616,  2715,  2717. 

penal,  not  enlarged  by  custom,  2597. 

fencing,  not  penal,  1527. 
STEAM. 

power,  1316-1318,  1250. 

requiring  disuse  of,  in  cities,  1454. 

STEAMBOAT. 

protection/>f  passengers  on,  2549-2551. 
furnishing  authority  to  ticket  agents,  2556.. 
redemption  of  tickets,  2560. 

penalty  for  not,  2561. 
liability  for  coroner's  inquest,  2950. 
See  166, 167,  176,  1235. 

STIPULATION— evidence  on  condemnation,  571-575,  579,  580,  759. 
STOCK. 

books  to  show  amount  and  the  owners,  61, 1174. 

stoek  dividends  prohibited,  87. 

fictitious  increase  of,  87. 

purchase  of  stock  on  renewal,  1172. 

what  stock  book  to  show,  1174. 

power  to  make  transferable,  1155, 1200. 

by-laws,  as  to,  1157a. 

paid  in,  to  be  entered,  1174. 

forfeiture  and  sale  of,  1192. 

notice  of  sale,  1192. 

personal  estate,  1200, 1200a. 

purchase  of,  by  corporation,  1200, 1203-1203b,  1203d,  1203e,  1205. 

creditor's  lien  on,  1203a. 

retiring  and  re-issue  of,  1203d. 

who  entitled  to  increased,  1207c,  1385c,  1207c. 

right  to  convert  into  bonds,  1338. 

limitation  as  to  issue,  1376,  2941. 

contract  to  take,  does  not  make  a  stockholder,  1377. 

fraudulent  issue,  void,  1878-1888. 

in  violation  of  law,  void,  1381 . 

equitable  relief  against,  fraudulent,  1380,  1382. 

fraudulent  issue,  no  defense  to  subscription,  1379. 

object  of  constitutional  prohibition,  1383. 

dividends  to  be  general,  1385a. 

who  may  increase  capital,  1385b. 

votes  determined  by,  1459. 

convertibility  of  into  bonds,  1467. 

payment  for  in  land  when  good,  2819,  2820. 

sale  of,  on  execution,  2926-2929. 

liable  to  sale  on,  2926 

when  pledged.  2926. 

remedy  mast  be  strictly  pursued,  2927. 

steps  to  perfect  levy,  2928. 

attested  copy  of  execution,  2929-2933, 
.    levy  and  sale  in  case  of  attachment,  2934. 

officers  to  give  certificate  of  shares,  2935. 
liability  for  refusal,  2935. 

issue  of  certificate  to  purchaser,  2937. 

transfer  on  books,  2937.  2938. 

right  of  purchaser  to  dividends,  2939. 
vote  necessary  for  increase  of  stock,  1206. 
forfeiture  of  for  non-payment,  1192. 
transfer  of. 

transfer  office  to  be  kept  in  state,  61,  1471-1473. 

transfers  made  at,  61,  1471,  1425,  1174. 

transfer  of,  1200b-1200d,  1200f,  1201,  12011). 

certificate  of  transfer,  1200e,  1200d. 
new  when  void,  1200d. 


454  INDEX. 


STOCK-.Cotttinued. 

canceling  old,  1200e. 

equitable,  relief  against  assignor,  1200f,  1201a. 
neglect  to  enter  on  books.  1201. 
assignee  protected  in  equity,  'I201b,  1201c, 
as  against  creditors  of  assignor,  1201d. 

as  between  the  parties,  1201d. 

as  against  execution  creditor,  1201b. 
liability  of  corporation  refusing,  1202. 
equitable  rights  of  assignee,  1202a,  1202b,  1201a,  1201b. 
in  absence  of  by-law  regulating,  1202c. 
not  enforced,  if  void,  1381. 

protection  of  innocent  purchaser  of  fraudulent,  1384. 
limitation  on  transfer  of,  1200. 
office  for,  where  kept,  1425,  1174. 
registry  of,  1425. 

on  books,  of  sale  on  execution,  2937,  2938. 
notice  to  purchaser  of  the  trust  character  of  stock,  1203c. 
to  be  kept  in  books,  1174, 1425,  1471. 
governed  by  by-laws,  1200b. 
by  issue  of  new  stock,  1200e. 

presumption  as  to,  1200f. 
equitable — what  passes  by,  1202a. 

title  of  assignee,  1202b. 
when  new  certificate  not  necessary,  1202d. 
See  ASSIGNMENT  OF  STOCK. 

STOCKHOLDERS. 

right  to  vote,  59. 

notice  to  before  consolidation,  67. 

annual  meeting  of,  1183. 

election  of  directors  at,  1175. 

change  of  mode  of  election  at,  1175. 

report  of  corporate  affairs  at,  1183. 

powers  at  general  meetings,  1184. 

fix  amount  of  loans  and  rate  of  interest,  1184. 
special  or  called  meetings. 

how  called,  1182. 

notice  of— quorum— adjournment,  1182. 

removal  of  any  officers,  1185. 

to  increase  capital  stock,  1206. 
notice  of,  1206 
notice,  how  given,  1206. 

for  other  purposes,  1206. 

business  at,  1206. 

record  of  proceedings,  1206. 

vote  in  person  or  by  proxy,  1206. 

of  the  vote  to  increase,  1207,  1207b. 

notice  of  meeting  when  not  necessary,  1361 . 

what  is  substantially  a  meeting  of,  1362. 
directors  are  trustees  for,  1176. 
bound  by  the  by-laws,  1157d. 
city  and  non-residents  may  become,  1181. 
contract  to  subscribe,  does  not  make  party  one,  1193. 
right  to  examine  books,  &c.,  1186. 
forfeiture  of  stock  by  non-payment  of  calls,  1192. 
may  order  issue  of  mortgage  bonds,  1338. 

order  for  to  be  recorded,  1338. 

must  authorize  the  mortgage,  1362. 

ratification  of  mortgage,  1364. 

meeting  to  authorize,  1468. 
notice  of  meeting.  1469. 
remedy  against  an  unlawful  loan.  1483. 
must  assent  to  increase  of  capital,  1179a,  1206,  2941,  1385b. 
must  assent  to  consolidation,  1411,  1422. 
railway  to  keep  in  state  a  list  of.  and  their  residence,  1425. 
personal  liability  of  for  debts  of  corporation,  1208-1210a,  2857-2864. 

administrator  not  so  liable,  1208. 

pledge  and  pledgee,  which,  1208. 

power  of  legislature  to  provide  for,  1210-1211a. 
reservation  of  power  to  regulate,  121  Oa. 

to  extent  of  face  value  of  stock,  2857. 

of  purchaser  of  stock,  2858. 

holder  of  pledged  stock,  2859,  2860. 

of  assignee — informal  transfer,  2861 . 

as— between  assignor  and  assignee,  2862. 

depending  on  time  of  becoming  stockholder,  2863,  2864. 

need  not  be  such  when  debt  contracted,  2863,  2864. 

how  discharged,  2865-2872. 


INDEX.  455 


STOC  KHOLDERS— Continued. 

payment  in  full,  2865-2871. 
individual  linhility  of. 

paying  stock  when  no  release,  2837,  2838. 

certificate  of  payment  of  whole  capital  and  recording,  2838,  2842. 

when  released  from  further  liability.  2872. 

ri<j;ht  to  set  off  debt  due  from  corporation,  2873-2875. 

dissolution  of  corporation,  no  release,  2876. 

nor  bankruptcy,  2877. 

nor  appointing  a  receiver,  2878. 
remedy,  whether  at  law  or  in  equity,  2879-2887. 
nature  of  liability— penal,  2888. 
declaration,  to  show  defendant's  stock,  2889. 

sufficiency  to  admit  proof  of  defendant  being  stockholder,  2890. 

one  held  sufficient,  2891. 

proof  of  defendant  being  stockholder,  2890,  2892-2896. 
estoppel  to  deny  corporate  existence,  2897,  2899,  2900. 

deny  constitutionality  of  charter,  2898. 
abatement  of  action  by  stockholder's  death,  2901. 
extent  of  bank  stockholder's  liability,  2902. 
lien  of  creditor  on  this  liability,  2903. 
payment  after  notice  of  suit,  2903. 

individual  liability  for  double  value  of  stock,  2904-2914. 
not  lost  by  not  suing  in  three  months,  2904,  2905. 
charter  construed,  2905. 

liability  under  unconstitutional  charter,  2906. 
remedy  at  law— several  liability,  2907. 
creditor  may  sue,  in  his  own  name,  2908. 
construction  of  statute,  2904,  2905,  2909 
interest  not  recoverable,  2910. 
decree,  when  no  apportionment,  2911. 
limitation  of  action  against,  2915-2919. 
liability  of  managing  officer,  2919-2925. 
individual  liability  for  unpaid  stock,  2812-2903. 

power  to  release  payment  as  against  creditor,  2812. 

law  has  no  application  to  corporation  not  formed  under  it,  2813 

liability  is  several— not  joint,  2814, 

when  secondary,  2815. 

limited  to  debts  of  corporation,  2816. 

appotionment  of,  when  not  necessary,  2817,  2832. 

receiver  may  enforce,  2818. 
creditor  after  payment  in  land,  2819. 
payment  of  stock  in  land,  binding,  2820. 
remedy  to  enforce. 

by  garnishment,  2814,  2821-2826. 

when  in  equity,  2815,  2817,  2828. 

by  receiver,  2818. 

statutory  is  exclusive,  2325. 
declaration  in  suit  by  receiver,  2827. 
creditor's  bill,  when  proper,  2828. 
duty  of  court  to  apportion,  2832. 
defense  to  suits  to  enforce,  2833,  2834. 
attacking  judgment  for  fraud,  2833. 
bankruptcy  of  corporation  fixes  liability,  2834. 

duty  of  assignee  to  collect  subscription,  2834. 
to  amount  of  stock,  until  whole  capital  stock  paid,  &c.,  2835-2903. 
construction  of  insurance  law  of  1861,  2835. 
liability  continues  till  whole  capital  paid  in,  2836. 

not  released  by  payment  for  stock,  2837,  2838. 
not  for  torts  of  corporation,  2839. 
under  general  insurance  law,  2840-2844. 

liability  does  not  attach  until  whole  stock  is  subscribed,  2845. 
nature  of  liability  is  that  of  partners,  2846-2848. 
one  stockholder  cannot  sue  another,  2846-2848. 
liability  of  stockholders  of  bank,  2848,  2849. 
primary  or  secondary  liability,  2850,  2H51. 
liability  not  in  nature  of  penalty,  2851,  2853,  2854. 
for  what  debts  liable,  2852,  2855,  2856. 
what  is  a  loss  to  creditor,  2856. 
liable  only  as  provided  by  statute,  2852. 
when  secondary,  2853,  2854. 
insolvency  of  hank  fixes  liability,  2856. 
of  bank  stockholders,  2851,  2855,  2856. 
STONE— taking  for  construction  of  road,  1214. 
STONING  CARS— punishment  for,  2118. 
STOPPING  TRAIN. 

at  county  seat.    See  RAILWAYS. 


456  INDEX. 

STOPPING  TRAIN— Continued. 

duty  to  stop  to  avoid  collision,  1892-1897. 

when  animal  is  seen  near  track,  1688. 

contract  for  stopping  at  certain  points,  1484c. 

before  attempting  to  pass  rail  way,  crossing,  1925,  1926,  2101. 

not  when  automatic  signal  is  adopted,  2726. 

criminal  negligence  in  exercising  right,  2102. 

actions  for  penalty,  2103-2110. 

effect  of  change  of  the  law,  2104. 

joinder  of  causes  of  action,  2105. 

justices'  jurisdiction,  2100. 

STREAMS. 

power  to  build  railway  over,  1235-1236c. 
culverts  over,  1235-1236b. 
obstructing,  1235. 
|  obstructing  navigable,  1235,  1244,  1244b. 

STREETS. 

condemnation  for,  327,  340,  364,  865,  505,  526. 
power  of  city  to  op_en.  358. 
sufficiency  of  petition,  402. 
ordinance  for— notice  enough,  437. 
when  proof  ordinance  necessary,  526. 
waiver  of  damages,  by  not  claiming,  599,  500. 
estoppel  >to  deny  title,  505,  509. 
benefits,  when  set  off,  589,  616. 
measure  of  damages — widening  street,  638. 
benefits  to  one  part  as  against  damage  to  other,  646. 
special  assessments  to  pay  for,  365 . 
mandamus  to  compel  collection  and  payment,  954-956. 
city  estopped  to  deny  validity,  955. 
taking  for— a  public  use,  294,  298. 
jury  not  necessary  under  old  constitution,  207. 
opening  when  title  passes,  1008. 
appeal  lies  from  order  widening,  1056. 

expediency  is  for  city,  374,  375,  393. 
reversion  on  abandonment  or  vacation,  1006. 
vacation  of,  no  taking,  237. 
vacation— vote  required,  140. 
See  VACATION. 
of  railway  track  in,  40. 

power  of  city  to  permit,  72,  846,  864,  884,  1250-1258. 

laying  road  in  street— act  of  the  state,  290. 

grant  to  enter  city,  gives  no  right  in  streets,  344,  860. 

to  use  for  track,  by  implication,  1259. 
right  of  railway  to  build  over,  1235, 1251. 

to  cross  streets,  1278. 
consent  of  city  necessary,  60,  118,  1257,  1261,  I265a. 

tracks  connecting  warehouses,  &c.,  137,  1273. 

not  necessary  to  cross  street,  359,  1278.  1261a. 
power  of  city  to  grant  use  and  for  what,  1250,  1253,  846,  864,  884 
grant  of  use  of— construed,  139,  1264,  1266,  1281b,  1283. 

joint  use  with  public,  139,  1283. 

public  bound  by,  141,  1253,  1254, 1260. 

mode  granting,  1255. 

passes  to  successor,  1256. 

sufficiency  of  ordinance,  1261b. 

no  exclusive  use,  1274, 1287. 

uses  must  be  a  public  one,  1275,  1274. 

must  clearly  appear,  1281,  1282. 

who  may  question,  1252,  1279,  138, 
railivay  track  in. 

estoppel  of  city  to  deny  Its  grant,  291. 

power  of  city  as  a  limitation  on  railway,  1262a. 

liability  of  city  allowing  railway  in  street.  1300,  130],  1300a,  1301a,  1303  827.  832-834. 

liability  of  railway  for  use  of  street,  851,  854,  857,  832-834,  846-866,  888-890,  893-895. 

for  additional  tracks  in,  865. 
action  for  obstructing,  892. 
no  injunction  till  damages  assessed,  862. 
track  in— when  no  nuisance,  142, 1277. 
contract  for  use  of  by  railway,  143. 
negligent  laying  of  track  in,  145,  147. 
no  grant  except  on  petition  of  lot-owners,  151. 
assent  of  lot-owners  to,  1263,  1265a,  12titi,  1271,  1272,  1284,  1286 

limitation  on  city,  1271.  1272. 

power  of  city  to  regulate  location,  etc.,  of  tracks  in,  1258,  1280. 
delegation  of  authority,  1258,  1258a,  1262, 12ti2a. 
may  change  location  and  crossings,  1280. 


INDEX.  457 


STREETS— Continued. 

require  fencing  of  track,  1280. 

steam  power  in  by  railway,  1250. 

new  use,  operation  of  freight  trains,  1289. 

dummy  railway  in,  1286. 

dedication — acceptance  necessary,  1249. 

title  to  vested  in  city,  1248, 1249. 

injunction  of  improper  use,  1290-1293. 

restoring  to  former  usefulness,  1297. 
condemnation  of  property  in,  268-272. 

damages  for  new  burden,  269. 

easement  in  protected,  268-270. 
right  to  locate  depot  in,  1513. 

right  to  lay  tracks  in,  1513. 
cattle  guards  in,  1582,  1596. 
use  of  oy  elevated  ways,  2947,  2948. 

STREET  CROSSINGS. 

city  may  compel  railway  to  construct,  144,  1280. 

duty  of  railway  as  to,  2089-2097a. 

change  of,  2090. 

leaving  safe,  2091 . 

duty  oil  successor,  2092. 

notice  to  make,  2098. 

penalty  for  not  making,  2100. 

no  duty  as  to  new  street,  2096,  149. 

warning  boards  at,  1825, 1826. 

signal  by  bell,  etc.,  at,  1827. 

requiring  flagman  at,  2450. 

See  CROSSINGS  OP  HIGHWAYS  AND  STREETS. 

STREET  RAILWAYS. 

general  railroad  law  not  applicable  to,  2483. 
liability  for  injury  from  sudden  starting,  2227. 

STRICT  COMPLIANCE— when  required,  306,  319,  321,  1199,  1822,  2927. 

STRICT  CONSTRUCTION. 

when  applied,  323,  328,  2147,  2116. 

See  CONSTRUCTION. 
STRIKES. 

of  railway  employes,  2552. 

of  servants,  no  excuse  for  delay,  2587,  2594. 

STRIKING  OUT— pleas  to  petition  to  condemn,  419-422. 

STRIP  OP  LAND  CUT  OFF. 

in  condemnation— value.  606. 

relative  value  as  to  whole,  686,  687. 
STRUCTURES  ON  LAND. 

on  right  of  way,  1238. 

by  consent— value  on  condemnation,  630,  665-667. 

in  street,  826,  833-866. 

SUB-CONTRACTOR— lien  for  labor  and  materials  to,  1081-1085, 1089. 
SUBJECT  MATTER-jurisdiction  of,  395-401. 

SUBPOENA— of  witnesses  by  railroad  commissioners,  2639,  2640. 
SUBSCRIPTION. 

municipal,  limited,  25. 

municipal,  not  under  eminent  domain,  187. 

of  capital  stock,  necessary,  1156g. 

directors  may  require  payment,  1192. 
forfeiture  of  stock,  1192. 

fraud,  as  a  defense,  1192k. 

when  released,  1192a-1192j. 

alteration  of  charter,  1192a. 

amendment  of  charter,  1192b-1192h. 

when  collection  enjoined,  1192i. 

estoppel,  1192J. 

who  liable  to  call,  1193. 

identity  of  corporation.  1194. 

release,  void  as  to  creditors,  1195-1197. 

whole  capital  must  be  taken,  1198. 

strict  compliance  as  to  incorporation,  1199. 

to  union  depot,  1515. 

for  reduced  rates,  1460,  1461. 

unauthorized  lease  in  defense,  1482. 

how  enforced  by  creditors,  2829. 

assignee  in  bankruptcy  to  collect,  2834 . 
—36 


458  INDEX. 

SUBROGATION. 

of  creditors  of  corporation  to  enforce  subscription,  2817,  2828. 

to  rights  of  corporation,  2817,  2828. 
SUCCESSOR. 

of  railway — right  to  use  street,  1356. 

takes  same  duties,  2092. 

bound  by  contracts  of  predecessor,  1484c. 
SUMMARY  PROCEEDING.    See  322,  447. 
SUMMONS. 

order  for,  by  judge,  432. 

issue  by  clerk,  432. 

alias — return  in  vacation,  434. 

service,  ten  days,  434. 
as  in  chancery,  436. 

as  to  new  parties,  464, 

service  on  corporations,  1099-1132. 

less  than  ten  days,  449. 

SUPERVISORS-road  appeal— hearing  as  to  damages,  1038. 
SUPERINTENDENT— powers  of,  1191a. 
SUPPLIES— lien  for,  1073,  1074, 1079. 

SUPERIOR  COURT  OF  COOK  COUNTY— jurisdiction  to  condemn,  399. 
SUPREME  COURT— appeals  to,  1054. 
SURETY— on  inspector's  bond— extent  of  liability,  2761. 
SURFACE  WATER.    See  811,  818,  819,  852,  873,  1237-1241. 
SURPL  OS— after  sale  of  goods  for  charges,  2957. 
SURPLUSAGE.    See  1692, 1716. 
SURRENDER  OF  TICKET.    See  TICKBTS. 
SURVEY  OF  ROUTE.    See  1220. 
SWEARING. 

appraisers,  475. 

jury,  487,  488. 
SWINE— cruelty  to,  168. 
SWITCH. 

private.  71. 

displacing,  171. 

limitation  as  to,  352-356. 
TAKING  FOR  PUBLIC  USE. 

what  is,  230-241.  948. 

what  is  a  partial,  1%,  230. 

not  by  a  mere  enactment,  233. 

for  same  public  use,  252. 

part  of  a  railway  for  another,  256a,  249-251 . 

property  subject  to,  262-276. 

compulsory,  300. 

See  EMINENT  DOMAIN.    CONDEMNATION. 
TAMPERING— with  grain  by  warehouseman,  2767. 
TAXATION . 

of  consolidated  road,  1400, 1419. 

of  rolling  stock,  1493. 

TAXES— apportionment  between  city  and  county,  188. 

TAXING  OF  COSTS— attorney's  fees,  1092, 1794-1799,  1518,  2599,  2600,  2714 

TAXING  POWER. 

special  assessments  not  derived  from,  193,  204,  224. 

not  under  that  of  eminent  domain,  203. 

effect  of  eminent  domain  on,  223. 
TEAM— frightening  by  whistle,  175,  2084-2086a. 
TELEGRAPH— condemnation  for,  232,  241,  351,  369,  648,  1002,  1003. 
TEMPORARY  LAW -what  is,  11. 
TENANT  IN  COMMON. 

separate  assessment  not  necessary'as  to,  460,  540 

evidence  by  one  avails  all,  527. 

joinder  in  appeal,  1039. 
TENANT. 

damages  to,  697,  700,  703,  704,  1020-1023. 

for  life,  summons  on,  judgment  does  not  bind  remainderman,  444  426 
TENDER. 

of  charges,  when  to  be  shown,  2567,  2568. 

of  grain  to  railway,  when  made,  2601. 

back,  of  fare  on  expulsion,  2550. 


INDEX.  459 


TENDER— Continued. 

of  grain  by  warehouse  receipt,  2779,  2973,  2978,  2979. 

of  fare,  to  entitle  to  baggage  check,  2236,  2241 . 
TERMINI  OP  EAILROAD. 

to  be  approved  or  fixed  before  condemnation,  334. 

legislative  reservation  of  right  to  fix,  335. 

when  so  far  fixed  as  to  give  right  to  condemn,  347. 

company  may  fix— sidetracks,  352. 

fixing  and  approval  necessary  to  complete  organization,  1149. 

no  power  to  change  after  once  fixed,  1225a. 

company  may  fix,  1463. 

TEXAS  CATTLE— suit  for  bringing  into  state— joinder  of  partieo,  2148. 

TICKETS. 

embezzlement  of,  170. 


procuring  before  entering  ears.  1157n,  1157o,  1322,  1324. 

confers  right  to  be  carried  to  place  named,  1157q. 

surrender  of,  1157w,  1160,  1326. 

for  freight  train  may  be  required,  1157y,  1158a,  2311-2313,  2316. 

family,  1158c. 

expulsion  for  not  surrendering,  1325,  1326,  2301,  2304. 

keeping  office  open  for  sale  of,  1323,  1334,  1457. 

stopping  at  stations  named  in,  2205. 

taking  up,  no  contract  to  stop  at  station  named,  2206. 

includes  baggage,  2250-2253. 

full  fare  for  failure  to  get,  2277. 

necessary  to  avail  of  special  rates,  2278. 

special  not  transferable,  2279. 

punched  or  worthless,  2288,  2310. 

expulsion  for  not  getting,  2291,  2298,  2299,  2324. 

refusal  to  purchase— expulsion,  2292,  2293,  2304 

lay-over  may  be  limited,  2318. 

loss  of  berth  ticket,  2325. 

family— good  for  adult  son,  2327,  21328. 

excursion  or  thousand  mile,  2706. 

redemption  of— penalty,  2560,  2561. 

holder  of  may  sell,  2560. 

officer  having  no  badge,  not  to  take,  2338. 
TICKET  AGENT. 

certificate  of  authority  to  sell,  2556. 

sale  of  tickets  without,  2557. 

penalty  for  selling  without,  2558. 

to  exhibit  his  authority,  2559. 
TITLE. 

transfer  by  condemnation,'  192, 1512. 

judgment  that  transfers,  205. 

when  acquired,  933,  935,  938,  953,  958,  967,  968,  980. 

how  passed,  998. 

effect  of  judgment  to  pass,  1005,  1007,  1008. 

proof  of  on  condemnation,  506,  508,  509. 

admission  of,  506,  510. 

estoppel  to  deny,  505,  507,  511. 

land-owner  to  prove,  1041. 

proof  of  on  appeal,  1053. 

to  streets,  1248,  1249. 

necessary  to  support  mortgage,  1355. 

by  transfer  of  warehouse  receipt,  2777-2794,  2992,  2784,  2785. 
TOKTS. 

of  contractors  and  lessees,  liability  of  railway,  1216-121 9c. 

of  corporation-  -stockholders  not  liable  for,  2839. 
TOWN. 

may  condemn  for  a  street,  327. 

liable  for  obstructing  navigation  by  bridge,  1244b . 

penalty  collected  for,  1506. 

TOWNSHIP  ORGANIZATION. 

road  law  for  counties  under,  not  local  law,  19. 

law  relating  to,  not  local  or  special,  36. 

constitution  of  1848  construed,  37. 

TCJMBLING-ROD -comparative  negligence  applies  to  use  of,  1977. 
TRACKS  OF  RAILWAY. 

right  to  use  connecting,  107. 

in  cities.    See  CITIES  AND  VILLAGES.    RAILWAYS. 

ice  and  water  along,  148. 


460  INDEX. 

TRACKS  OF  RAILWAY  -Continued. 
injury  to,  171-174. 
false  signal  on,  171. 

condemnation  of.    See  RAILWAYS.    CONDEMNATION.    EMINENT  DOMAIN. 
liability  of  city  for  allowing  in  streets.    See  CITIES  AND  VILLAGES. 
in  street — when  no  nuisance,  1277. 
fencing.    See  FENCING. 
team  stalled  on,  1812. 

duty  of  railroad  commissioners  as  to,  2636. 
in  unincorporated  town,  290. 

TRAINS.    See  FREIGHT  TRAINS.    RAILWAYS. 
TRAINING  TRACK-damages  for,  651. 
TRAIN-WAY— from  coal  bank— a  private  use,  302. 
TRANSCRIPT  OF  JUSTICE-filing  in  circuit  court,  1091. 
TRANSFER  OF  STOCK.    See  STOCK. 

TRANSPORTATION, 
of  grain  in  bulk.  107. 
of  persons  and  freight,  1316. 
duty  to  furnish  cars  for,  2140,  2141. 
delay  in,  2142-2144. 

TRAVELLER. 

injury  for  want  of  signal  boards,  1825,  1826. 

signals,  for  protection  of,  1832. 

rights  of  at  crossings,  1898-1902. 

duty  at  highway  crossings.  1898-1902. 
neglect  to  look  for  train,  1906-1915. 

excuse  for  want  of  care,  1916-1924. 

without  negligence,  1930,  1931,  1934. 

walking  on  track,  1932,  1933. 

comparative  negligence  of,  2028. 
TREBLE. 

damages,  2145-2147a. 
extortion,  &c.,  2714. 

TRESPASS. 

entry  before  payment,  240,  241.  1004. 
no  recovery  for  on  condemnation,  668,  736. 
evidence  of  on  condemnation,  736. 
'     entry  before  judgment,  948,  1045. 

against  telegraph  company  for  entry,  1003. 

removing  fence  to  open  road,  1029. 

expelling  passenger,  not  at  a  st»tion,  2305. 

on  right  of  way  by  animals,  1655-1657,  1660,  1684,  1739,  1740,  1744. 

passing  over  depot  grounds,  1501. 

by  person  on  track,  1808,  1811,  1813, 1&32,  1891,  1932,  1933. 

TRESTLE— examination  of  by  railroad  commissioners,  2636. 
TRIAL. 

necessary  to  a  condemnation,  209. 

by  jury,  278-288. 

date  of,  as  fixing  damages,  783-790. 

TROVER— against  warehouseman  refusing  to  deliver,  2984,  3001. 
TRUSTEE. 

directors  are,  1176. 

liability  for  stock,  1208. 

operating  road,  liability  of,  1219c,  1219d. 

individual  liability  of,  1210d. 

in  possession,  liable  in  name  used,  1348. 

person  managing  mortgaged  road,  is,  1351. 

of  warehouseman,  for  creditors,  2967. 

of  schools— grant  of  right  of  way,  1492. 

TRUST  FUND— capital  stock  ib,  1197. 
TUNNEL-in  street,  836,  837. 
TURNPIKE— railway  over,  1235,  325. 
ULTRA  VIRES— estoppel  to  insist  on,  1385. 
UNION  DEPOT. 

incorporation  of,  1507. 

articles  of,  1507. 

over  and  under  streets,  1513. 

borrowing  money— mortgage,  1514. 

subscriptions,  1515. 

legislative  control,  1515. 

election  of  directors,  1516. 


INDEX.  461 


UNION  DEPOT-Cvntinucd. 
joint  use  of  depot,  1517. 
rules  and  regulations,  1517. 
discrimination  in  use,  1517. 

UNION  OP  ROADS.    See  CONNECTIONS. 
UNITED  STATES— power  to  condemn,  333. 

UNJUST  DISCRIMINATION. 

act  of  1873  a  valid  law,  81. 

duty  to  pass  laws  to  prevent,  94. 

passage  of  laws  to  prevent,  1428,  1515. 

statute  against,  3653-2705. 

statute  held  unconstitutional,  2656. 

laws  held  valid,  2657. 

law  against,  no  violation  of  charter|rights,*2654. 

only  im.fttsf  prohibited,  2655,  2656. 

carriage  not  confined  to  state,  2659. 

power  of  state  to  prohibit,  2665. 

effect  of  law  on  prior  contracts.  2666. 

applies  to  all  roads  in  state,  2667. 

discrimination  at  common  law,  2668,  2669. 

extra  charge  for  no_t  getting  ticket,  2668. 

as  to  charge  being  in  proportion  to  distance,  2670. 

must  be  a  shipment,  2671. 

action  for  giving  a  preference,  2672. 

as  to  persons,  2672-2677,  2685,  2686. 

as  to  warehouses,  2674,  2677. 

as  between  places,  2678,  2687,  2689-2694. 

in  what  it  may  consist  2679,  2683. 

rebate  as  to  .one,  is  and  contract  void,  2680. 

what  is  not  unjust,  2684. 

instances  of  just,  2695. 

right  of  action  for,  2696. 

not  before  rates  fixed,  2697. 

evidence  must  show  the  discrimination  is  unjust,  2698. 
schedule  of  rates,  prima  facie  evidence,  2699. 

to  be  published,  2700. 

increase  of  charges,  not  as  to  prior  contracts,  2701 . 
declaration  for,  2703. 

for  extortion,  2702. 

must  show  the  offense,  2704. 
limitation  of  action,  2705. 
evidence  of  ,2706,  2708. 
construction  of  statute,  2707-2709. 
penalty  for,  2710. 

trial  by  jury,  2710. 
appeals— to  what  courts,  2711. 
preponderance  of  eyidence,  2712. 
rules  of  evidence  as  to,  2724. 
fines  to  be  paid  county,  2724. 
suits  for,  to  have  precedence,  2724. 

UNKNOWN  OWNER. 

party  to  condemnation,  325. 

notice  to,  445.    See  1016. 
UNLAWFUL. 

taking  of  property,  177. 

entry,  1004. 
UNLOADING. 

grain  from  cars,  2774. 

time  allowed  for,  2623. 
USE. 

taking  property  for  'same,  252. 

change  in,  262,  263.  " 

when  different,  263. 

new,  of  a  street,  269. 

must  be  a  public,  to  condemn,  289,  302. 

what  is  a  public,  289-302. 

of  highway,  1245-1247a. 

whether  joint  or  exclusive,  1245,  1264. 

statute  construed,  1246. 

power  of  commisioners  to  grant,  1247. 

right  to— not  as  against  public,  1247a. 

of  streets,  1248-1263a. 

joint  or  exclusive,  1264, 1283. 
not  exclusive,  1274,  1275,  1287. 
USER— of  corporation  to  show  corporate  existence,  1169. 


462  INDEX. 


USER  OF  LAND. 

stating  in  petition,  412,  413,  416. 

manner  of  —need  not  be  stated,  418. 

on  question  of  value,  610,  657,  679,  682-684. 

as  evidence  of  value,  674-676,  678,  679. 

future,  723. 

embraced  in  grant,  794. 

special,  giving  value,  751. 

proposed,  754. 

evidence  as  to  use  and  proposed,  764. 

evidence  of  damages,  893. 

VACATION. 

of  street,  140,  237. 

petition  in— to  condemn,  432. 

powers  of  judge  in,  433. 

return  of  summons  in,  434. 

new  trial  in,  435. 

hearing  in,  453. 

petition  filed  in— hearing  in  term,  467. 

amendments  in,  464. 

selection  of  jury,  468,  469. 

of  street,  vote  necessary  to,  140. 

reversion  on.  1006. 

liability  of  city  to  lot-owner,  845. 
See  STREETS  . 

VALIDATION— of  prior  incorporation,  1463-1466. 

VALUE. 

depreciation,  578,  638. 

relative,  639,  642,  643. 

of  what  it  consists,  651. 

depending  on  special  use,  647,  651,  751. 

facts  stated,  751,  752,  657. 
whether  building  enhances,  658. 
of  building  to  the  owner,  667,  673. 
when  no  market  value,  678,  679. 
as  a  part  of  whole  tract,  686,  687. 
difference  in,  as  a  measure,  709. 
part,  when  as  of  the  whole,  714. 
what  owner  or  jury  thinks,  711, 
elements,  uses  and  capabilities,  721,  743,  751. 

location,  situation  and  demand,  721,  751. 

prospective,  722. 

improvements  on  land,  752. 
lots  have  no  standard,  725. 
land  for  subdivision  into  lots,  743. 
when  of  the  whole  lot  necessary,  776. 
evidence  of — sales,  920. 

party's  deed  as,  739. 

plans  of  proposed  buildings,  754. 

opinion  of  witnesses,  725. 
diminution  of,  801. 
as  of  date  of  filing  petition,  788-790. 
action  for,  995. 
of  stock— pleadings,  1718. 
See  DAMAGES.    EVIDENCE  . 

VALISE— injury  to,l76. 

VARIANCE  -between  declaration  and  proof,  1779-1782,  2532. 

VENIRE . 

for  jury  in  vacation,  468. 

to  fill  panel,  482. 
VENUE— proof  of,  1777. 
VESTED  RIGHTS. 

under  condemnation,  938,  951,  981. 

in  condemnation,  money,  951,  981. 

under  old  constitution,  preserved,  1,  2. 

not  in  the  remedy,  1211. 
VERDICT. 

amending,  489. 

recital  or  appointment,  530. 

showing  basis  and  elements  of  allowance,  531,  532 
allowance  for  fencing,  531,  533. 

to  show  compensation  and  damages  separately,  533,  535,  539,  540. 

omission  as  to  fencing,  534. 

certainty  in,  536. 

finding  separately  as  to  each  tract,  537. 


INDEX.  463 

VE  RDICT— Continued. 

sufficiency  of  description  of  land,  538. 

gross  sum  as  to  compensation  and  damages— presumptive,  539,  540. 

construed  as  to  allowance  of  benefits,  70S). 

mode  of  flndinsr— addition  and  division,  762. 

recording,  1070. 

curing  defects,  1569,  1701,  1710. 
VIADUCT— in  street,  action  for,  839,  840. 
VIEW. 

of  premises  by  jury,  490  -496. 
as  evidence,  740,  768. 

of  animal  on  or  near  track,  1803, 1806. 

obstructing,  of  approaching  train  by  brush,  etc.,  1803,  1805. 
VILLAGE. 

what  is,  under  fencing  law,  1575-1577. 

laying  street— ordinance,  364,  365.5 

penalty  to,  for  neglect  as  to  depot,  1506. 
VIOLENT  ENTRY— not  evidence  on  condemnation,  736. 
VOID. 

allowance  of  benefits  against  compensation,  632. 

when  judgment  is,  485. 

VOLUNTARY  GRANT— to  railway  authorized,  1226. 
VOTE. 

required  to  vacate  street,  140. 

to  increase  capital  stock,  1206. 

to  mortgage  railway,  1338. 

to  consolidation  of  roads,  1422. 

regulating  by  by-laws,  1157a. 

by  proxy  allowed,  1206,  1459,  1468. 
WAITING-ROOM— at  depot,  1158b,  1504. 

WAIVER. 

of  trial  by  jury,  288. 

of  objections.  487 

Of  damages,  497-500. 

of  proof,  514. 

as  to  separate  finding,  537. 

of  rights,  992. 

of  lien,  mechanic's,  1080. 

of  right  to  increased  capital,  1207c. 

of  tort,  money  had  and  received,  2988. 

of  prepayment  of  freight,  2568. 

WALKING  ON  TRACK.    See  1808-1814,  1832,  1897,  1896,  1932,  1933, 1959,  1961,  2024. 
WANTON  INJURY— to  stock,  1670. 
WAREHOUSE  AND  WAREHOUSEMEN. 

liability  for  defects  in  approach,  2097a. 

storing  baggage  in.  2270-2273. 

action  by,  for  not  delivering  grain  to,  2600. 

delivery  to,  if  on  railway's  line,  2603. 

track  of,  when  part  ot  railway,  2604. 

statements,  by  to  commissioners,  2633. 

licenses — cancellation,  2637. 

delivery  of  grain,  after  revocation,  2637. 

re-licensing— limitation,  2637. 

licenses  contrary  to  law,  void,  2637. 

act,  not  special  legislation,  20. 
not  unconstitutional,  85. 

what  a  public,  99. 

posting  statements,  104. 

mixing  grain,  104. 

inspection  of  books  and  property  of,  105. 

receipts  to  be  delivered,  106. 

fraudulent  receipts.  111. 

connections  to  reach,  107-110  137,  1275,  1308-1310. 

inspection  of  grain  regulated,  112. 

delivery  of  gram  at,  107-110. 

examination  of  books  of,  2638. 

act  regulating,  is  constitutional,  2732,  2733. 

classification  of,  2734,  2735. 

license  to  class  A— revocation,  2737. 

bond  of  licensees,  2738, 

penalty  for  doing  business  without,  2V39. 

renewing  license,  2739. 

not  to  discriminate  or  mix  grain,  2740. 

grain  in,  to  be  inspected,  2740. 

receipt  lor  grain  in  separate  bin,  2740. 


464  INDEX. 


WAKEHOUSE  AND  WAREHOUSEMEN— Continued. 

not  compelled  to  take,  when  full,  2740. 

manner  of  issuing  receipts,  2741. 

limitation  of  liability  in  receipt,  2744. 

liability  of,  2745. 

lien  on  grain,  when  lost,  2748-2751. 
lost  by  agreement,  2752. 

remedy  against  for  non-delivery,  2753. 

posting  statements  of  grain  in  store,  2755. 

furnishing  statements  to  registrar,  2755. 

reports  of  cancelled  receipts,  2755. 

appointment  of  chief  inspector,  2756. 

to  publish  schedule  of  rates,  2764. 

maximum  charges  for  storage,  2764. 

agreed  and  customary  rates,  2764. 

loss  by  fire  or  heating,  2766. 

duty  as  to  order  oi  delivery,  2766. 

notice,  when  grain  is  out  of  order,  2766. 
'    what  it  shall  state,  2766. 

delivery  of  equal  quality  as  received,  2766. 

care  to  preyent  loss  by  fire,  &c.,  2766. 

mixing  grain  with  that  out  of  order,  2766. 
penalty  for  neglect  of  duty,  2766. 
action  on  bond,  2766. 
revocation  of  license,  2766. 

when  may  sell  grain  at  auction,  2766. 
notice  of  such  sale,  2766. 

tampering  with  grain,  2767. 

mixing  different  grades,  2767 . 

trying  to  deliver  one  grads  for  another,  2767. 

drying  grain  in  priv_ate  bins,  2767. 

removing  grain  for  its  preservation,  2767. 

right  to  examine  grain  and  scales,  2768. 

not  to  receive  before  inspection,  2769,  2770. 

liability  for  taking  grain  after  notice  not  to  store,  2774. 

combination  to  get  grain  delivered  to,  2775,  2770, 

action  on  bond  for  violation  of  law,  2776. 

criminal  prosecution  for,  2776. 

liability  of  successors  to  holders  of  receipts,  2787. 

removing  property  without  return  of  receipts,  2793. 

remedy  for  non-delivery  of  grain,  2782. 

measure  of  damages,  2783. 

when  liable  on  execution  against,  2784,  2785. 

may  dispose  of  grain,  if  he  keeps  enough,  2786. 

liability  for  false  receipts,  2793. 

posting  copy  of  law,  2794a. 

delivery  without  return  of  receipts,  2800. 

inspector's  fees  made  a  lien  on  grain,  2800. 

certificate  of  weighmaster,  conclusive,  2803. 

penalty— deny  weighmaster's  access  to  scales,  2811. 

when  grain  falls  short,  loss  divided,  2951. 

intermixture,  each  takes  proportunate  share,  2952. 

party  consenting,  cannot  replevy,  2953. 
lien  in  favor  of,  2954 . 

not  lost  by  issue  of  fraudulent  receipts,  2955. 
action  for  issue  of  fraudulent  receipts.  2956. 
on  sale  for  charges— surplus  goes  to  snipper,  29o7. 
may  recover  charges  of  holder  of  receipt,  2958,  2859. 
lien  of,  lost  by  delivery,  2960. 
no  lien  on  goods  of  another  person,  2961 . 
degree  of  care  required  of,  2962,  2977. 
compensation  of,  receipt,  construed,  2963. 
confusion  of  grain  by — loss  ratably,  2966. 
assignment  for  creditors,  loss —chancery  jurisdiction,  2967. 
care  and  liability  of — not  insurer,  2968. 
liability  of  assignee  of  warehouse  selling,  2974. 
assignee  of  warehouse  takes  no  title  to  grain  of  others  stored,  2975. 
average  of  loss  on  intermixture,  2976. 
contract  for  storage—construction,  2980,  2981. 
remedy  against  warehouse  refusing  to  deliver,  2984, 
assumpsit  or  trover  against,  2984. 
measure  of  damage,  2985. 
non-payment  of  storage  no  defense,  2986. 
whether  contract  of  deposit  or  sale,  2990. 
lien  of,  how  lost,  2991. 
act  regulating,  a  valid  law,  2994,  2995. 
liability  under  contract  to  insure,  2996. 
selling  grain  may  hold  in  store,  2998. 
liability  of  grain  to  execution  against  warehouseman,  2999. 


INDEX.  465 


WAREHOUSE  AND  WAREHOUSEMEN— Continued. 
intermixture  of  grain,  title  in  holder  of  receipt,  3000. 
liability  in  trover  for  refusing  to  deliver,  8001 .     te-w.vS 
assignee  or  purchaser,  liable  to  holder  of  receipts/SOOS. 
duty  and  pay  for  forwarding,  3003. 
what  will  bar  charges,  3004 . 
liable  for  delivery  to  wrong  person,  3009. 
when  the  contract  is  for  storage  or  transportation,  3014 . 
regulation  of  charges  of,  78-85. 

WAREHOUSE  RECEIPTS, 
manner  of  issuing,  2741. 
what  to  state,  2741. 
mode  of  cancelling,  2742. 
issue  one  on  delivery  of  grain,  2743. 
issue  of  new— partial  delivery,  2743. 
dividing  receipt,  2743. 
consolidation  of,  2743. 
limiting  liability  on,  published,  2744. 
sampler's  ticket  is  not,  2746,  3010. 
holder's  rights  on  non-delivery  of  grain.  2747. 
purchase— taken  subject  to  lien,  2748a,  2749. 
holder  of  properly  indorsed,  entitled  to  grain,  2747. 
evidence  of  ownership,  2754. 
cancelled  to  be  reported  to  registrar,  2755. 
assignable  by  indorsement,  2f~7. 


negotiability  of,  2777-2792. 
delivery  of— transfe: 


asfers  property,  2778,  2780. 
tender  of— is  of  the  grain,  2779. 
cannot  be  varied  by  parol.  2781,  2983. 
remedy  for  refusing  to  deliver,  etc.,  2782. 
whether  a  pledge,  2784. 

property  not  subject  to  execution,  2785,  2999. 
binding  on  successor  of  warehouseman,  2787. 
title  that  passes  by  assignment,  2788-2791 . 
not  negotiable  as  a  note,  2788-2791. 
punishment  for  false  or  fraudulent,  2793. 
return  of,  before  property  removed,  2793. 
to  be  returned  before  delivery.  2800. 
issue  of  fraudulent— effect  on  lien,  2955. 
action  on  case  for  issue  of  fraudulent,  2956. 
purchassr,  takes  subject  to  charges,  2958. 

liable  for  charges  when,  2958. 
construed  as  to  warehouseman's  pay,  2963. 
rights  of  holder,  when  entitled  to  damages,  2964. 
creates  no  lien  on  property  of  warehouseman,  2965. 
stand  in  place  of  the  property  stored,  2969. 
transfer  of,  transfers  the  property,  2969. 
not  strictly  negotiable  instruments,  2969. 
transfer  by  one  having  no  title,  2970. 
negligence  in  enabling  holder  to  sell,  2971. 
delivery  in  blank — bona  fide  purchaser,  2971 . 
what  is  negligence  in  purchaser  of,  2972. 
tender  of,  when  tender  of  grain,  2973,  2978,  2979. 
negotiability  of,  2982,  2969-2971.  3005.  3006,  3011,^3014,  3015. 
transfer  of  property  by,  2992,  3007,  3008. 
construed  as  not  creating  a  pledge,  2993. 
etidence  of  ownership  of  grain,  2993. 
possession  of— is  of  grain,  2997,  3008. 
given  by  warehouseman  on  sale,  good,  2998. 
is  but  a  contract,  3006. 

will  not  pass  title  when  assignee  has  none,  3007. 
rights  of  assignee,  3012,  3013.  3016,  3018. 
by  overseer  of  warehouse,  not  negotiable,  3015. 
does  not  guaranty  the  title  of  property,  3017. 
holder  takes  no  better  title  than  if  he  had  the  goods,  3018. 
transfer  of,  passes  title  and  possession  of  property,  3019. 

notice  or,  to  warehouse  before  title  vests  absolutely,  3020. 
transfer  of  makes  warehouseman  bailee  of  holder,  3019. 
attachment  before  notice  of  transfer  to  warehouseman,  3021. 
transfer  passes  constructive  possession  without  notice,  3022. 
notice  of  transfer,  3023. 

may  be  pledged,  by  one  clothed  with  apparent  title,  3024. 
pledge  by  warehouseman,^  transfer  of  his  own  receipt,  3025. 
rights  of  pledgee  of,  3024,  3026. 
transfer  without  endorsement,  3027,  3028. 
purchaser  protected  against  fraud,  by  vendor,  3029. 
transfer  of  title  by,  3030-3032. 
rights  of  holder— not  to  identical  grain,  3031. 
—37 


466  INDEX. 

WAREHOUSE  RECEIPTS— Continued. 

to  action  for  breach  of  duty,  3033, 

contract  by  blank  indorsement,  3033. 

WARMING  DEPOT. 

duty  as  to,  2130. 

penalty  for  not,  2145. 
WARNING. 

of  approach  of  train  at  crossings,  1827-1967. 

for  whose  protection,  1832-1835. 

at  street  crossings,  duty  to  give,  2454. 

boards  at  road  crossings.  18\5,  1826. 

See  HIGHWAY  CROSSINGS'. 

WATCHMEN. 

at  railroad  crossings,  2450,  145 . 

on  rear  of  cars  pushed,  2451,  2452. 

absence  from  street  crossing— liability,  2453. 

expenses  of,  at  railway  crossing,  560. 

See  FLAGMEN. 
WATER. 

on  sides  of  track,  148. 

stagnant,  145. 

dividing  farm  from,  609,  716. 

power,  610. 

to  mill,  on  condemnation  evidence,  690. 

thrown  on  lot,  810,  811,  815,  821,  835. 

change  of  natural  flow,  818,  819. 

provision  for  carrying  off,  867. 

damming  up— obstruction,  870-874,  878,  1237-1241. 

tank  in  street,  838. 

course — railway  over,  1235. 
obstructing,  1236,  1236a. 

craft — offenses  on,  178. 

obstructing  by  defective  bridge,  1398. 

craft— power  of  railway  to  own  and  use,  1488. 
no  condemnation  for  landing,  1489. 

in  ditches,  as  negligence,  1689. 

tank— not  a  regular  station,  2299. 

WEEDS,  ETC.— on  right  of  way,  165, 1800-1806. 
WEEKLY  STATEMENT-by  warehouses,  104. 

WEIGHING  GRAIN. 

by  railway,  106,  2562,  S599. 

in  bulk  by,  2728-2731 . 

railway  to  furnish  appliances  for,  2728. 

to  give  weight  in  receipts,  2728. 
liability  for  violation,  2730. 
penalty  for  violation,  2731. 

WEIGHT  OF  EVIDENCE.    See  726,  748,  749,  768,  1904,  1905. 
WHARF. 

connections  with,  1275. 

condemnation  for  different  use,  263. 

WHISTLE. 

frightening  team  by,  175,  2084-2086a.  « 

at  highway  crossings,  1828. 

application  of  law,  1828. 

police  regulation,  1828. 

either  bell  or  whistle,  1830. 

starting  train  without,  2087-2088a. 

See  SIGNALS. 

WIDENING  STREET.    See  638. 

appeal,  1056. 
WIDTH. 

of  right  of  way,  366-372,  415,  1051,  1231-1233. 

not  for  the  jury,  524, 
WILLFUL. 

injury  to  stock— liability,  1518,  1587,  1736,  1657,  1670,  1677. 
to  person,  1814,  1»97,  1961,  1964,  1959,  2024. 

plaintiff  in  some  fault,  2037,  2038,  2052,  2068,  2082. 

when  act  is,  2189. 

WILLFUL  MISFEASANCE— carrier  cannot  exempt  self  from,  2340,  2347-2349,  2354,  2385, 

2389,  2391,  3392,  2409,  2417,  2419,  2423,  2428. 
WINE-CELLAR— profits  of,  676. 


INDEX.  467 


WITNESS. 

opinion  as  to  value,  725. 

credibility  and  weight,  726,  749. 

cross-examination,  735. 

experts,  741,  748,  747. 

competency  to  give  opinion,  733,  741,  743,  745-749,  753,  756. 

limiting  number  of,  942. 

commissioners  may  examine,  <fcc.,  2639,  2640, 

penalty  for  non-attendance  or  refusing,  2639,  2640. 

indictment  of,  2640. 

WORK  SHOP— condemnation  for,  387. 
WOUNDING  STOCK.    See  175. 
WRIT  OF  ERROR.    See  1046, 1062. 
YARD-MASTER— signal  before  uncoupling  cars,  1834. 


UNivERsrrv  OF  ILLINOIS-URBANA 


30112062005829 


